The last cavalcade of the Three Kings of Cádiz had not yet finished and the meme was already there, thanks to a simple mishap. An apparent error in the inflation system of a polar bear costume made its unknown interpreter have to walk a good part of the route with the head of the huge stuffed animal completely bent. It did not take more for the parody to flood messaging services and social networks throughout Spain: the bear avoiding the swab of a PCR; as the protagonist of the movie poster don’t look up; converted into a disjointed logo for Tous and even as a new dancer for Raffaella Carrà. With virality already guaranteed, some companies took the next step: turning it into a sales product in the form of socks, mugs or t-shirts. The economic jump is not new, but it is so risky that speed and legality and even luck are key so that the joke does not end in disaster.
The mobile phones of Juan Carlos Ramos and Javier Ayala, owners of the Pepe Pinreles fantasy socks company, were filled with memes of the “harmed bear” – as a local television commentator Onda Cádiz baptized it live – a few hours after the mishap and immediately made the decision. “Why not take it to a design of ours? We put the digital marketing department to work. In four days we were already selling them”, summarizes Ramos. The occurrence went so well that, even today, it continues to generate income. “We sold 3,000 pairs in the first 72 hours. Now it’s down, but it’s still working. It is the product that has had the highest performance in less time”, says Ayala.
For Pepe Pinreles —founded four years ago and with an average of 25 workers a year— it is not new to live linked to occurrence, humor and party. Their sock designs based on the Cádiz Carnival, the Holy Week in Seville and the fairs or celebrations in various parts of Spain are updated and vary in sales throughout the year. But it is the first time that the firm embarked on the uncertain and fast path of trying to monetize a viral occurrence on social networks, enormously exposed to current affairs and the volatility of tastes. “There are very fast consumption memes that everyone tries to take advantage of and others of long duration that become popular culture and a way of expression (…). It depends on the ingenuity of the people to keep it alive and how it reinvents itself”, catalogs Fernando de Córdoba, expert in brand strategy, content and narrative.
That a brand decides to create a sales product based on a meme does not only respond to immediate economic interests. “It’s a way of telling people that you live in the same universe as them,” says Córdoba. Many of these viral jokes create shared community codes between groups or generations, so by using them, brands try to create complicity. Although if they do, as the expert points out “it is not to lose money”. “If you’re not sure, you use it only for online platforms,” adds Córdoba. This marketing strategy, known as newsjacking, is the one followed by many community managers of well-known companies to enter the rag on their social networks of the viral joke of the moment, as Cruzcampo or Desatranques Jaén do on Twitter.
Among the memes that have become popular culture are the graffiti “emosido deceived”, “vanpiro esiten”, the circumspect smile of “Harold” with his laptop; the yellow chick of “it had to be said and it was said” or the photos of cats in a thousand postures and gestures, like the frightened pussycat that almost three years ago joined the photo of a woman who rebukes him. Almost all of these memes are present on t-shirts from La Tostadora, an online store in Barcelona that functions as a space marketplace [tienda de tiendas] in which, every week, various designers upload up to 15,000 new creations to put them up for sale. “We function as print on demand [impresión bajo demanda], what happens today on the networks, in two days can be on the street. That cycle is very different from that of traditional fashion. Anything that happens can be turned into a product”, explains Ferrán Güell, director of marketing and partner of the company. Unlike brands like Pepe Pinreles that do need to make the investment profitable, at La Tostadora there are no losses if something doesn’t work, “only time wasted on the design,” says Güell.
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Another different matter is that the attempt to monetize a joke on networks becomes a legal headache. From the outset, a meme is nothing more than a parody, protected by the constitutional right of freedom of expression. At the beginning of November of last year, Spain went a step further and transposed the European directives on copyright and related rights in the European Digital Single Market with a new royal decree. Article 70 defines, in general terms, the permission to create memes — defined in the law as “pastiches” — from previous works that have intellectual property. But the casuistry is so varied and complex that “there is a separate 26-page EU recommendation to try to explain it,” says Carolina Pina, a lawyer at the Garrigues law firm, specializing in media and image rights.
And everything is likely to get even more convoluted, as the lawyer points out: “I can make memes for my WhatsApp group, without commercial purposes and for it to go viral. More complex is if you can profit from it”. Because if a meme is based on a person or a transformed pre-existing work, “authorization is necessary,” as Pina explains. The lawyer gives as an example the case of trying to monetize the caricature of the singer Julio Iglesias and that of him famous “and you know it”, where there may be a collision with the artist’s intellectual property and image rights. Or the case of registered phrases, as Antena 3 did at the time with the series There is no one living herestill an inexhaustible source of virality.
The examples are many and varied: if they are street graffiti or phrases, it depends on whether they are —or can be— registered or not; if they are animals, if their representation is also registered as an illustration. “In those cases, we talk about the expression of the cat, not the cat itself,” the lawyer points out. And not in a few occasions the profitability of these memes has ended in a judicial conflict. This is what happened in January 2018, when a court in the United States agreed with the owner of the pussycat of Grumpy Cat (a viral cat with a grumpy face) and condemned a beverage company to pay him $710,000 (572.00 euros) in damages, after the firm exceeded what was agreed in the use of the image of the animal.
To avoid these wrongs, La Tostadora has a team that visually checks that the designs do not include logos or registered trademarks. To this they add some conditions of use that force the designer to commit that the content that he uploads is owned by him and a file in each product that allows him to report it, if a third party appreciates a violation of rights. For his part, Pepe Pinreles has gone a step further and even already has agreements with Holy Week brotherhoods or Cádiz Carnival groups, for which they earn a royalty for each sale. “If we win, let them win,” explains Ayala.
It is not something that they have had to do with the injured bear, arising from a mishap that occurred in the street and immortalized by dozens of mobile phones and the media. Once the first blow that had half of Spain laughing for days has passed, it remains to be seen if the ill-fated costume will be able to survive its success, converted into a temporary meme. To Pepe Pinreles, an eminently Andalusian company until now, it is worth it that his design has served to be known throughout the country. They have been so hooked by the adrenaline of conceiving, producing and selling virally that they plan to repeat the experience. “We don’t rule it out.. We are linked to good vibes, as long as it does not hurt sensitivities, why not? ”, Javier Ayala intervenes.
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