Law360 (September 18, 2026, 9:00 PM EDT) -- A bat-wielding wooden drum named Tung Tung Sahur is raising questions Mickey Mouse, Godzilla and James Bond never posed: Can a "brainrot" character created using artificial intelligence be protected by copyright, and can it later function as a trademark if it went viral before anyone used it as a brand?

Those questions are emerging from a fight over "Steal a Brainrot," a massively popular game on Roblox, where players collect and steal surreal, often AI-generated meme characters with absurd names known as Italian brainrots.

Spyder Games and Speedy Simulator Gaming sued Mementum Lab, a French licensing startup that represents Tung Tung Sahur's creator, after it sent a cease-and-desist letter asserting rights to the character. The suit, filed in November and since amended, asks a California federal court to declare that Mementum cannot use U.S. copyright or trademark law to bar the companies' use of Tung Tung Sahur and other brainrot characters. Dueling motions to dismiss are pending — one to toss the complaint, the other to toss Mementum's trademark counterclaims.

The case brings together unsettled copyright and trademark questions that have taken on new urgency in the age of AI and viral memes. No U.S. court has yet decided whether a fictional character can qualify for copyright protection when AI helped create it, and the Copyright Office has said that merely prompting an AI system to create a work is not enough to create an entitlement to protection.

Trademark law, meanwhile, faces a distinctly internet-age question — whether a meme that became famous online before any licensing business existed can later signal to consumers that products featuring it come from, or are authorized by, a single source.

James Weinberger, a Fross Zelnick Lehrman & Zissu PC attorney who has represented DC Comics and Warner Bros. Pictures, said fictional characters usually become associated first with a movie, book, television show or other entertainment property, with merchandise and licensing following after a commercial source is already established.

"These things were out there kind of in the ether, not used in a way that's traditional," Weinberger said of brainrot characters. "That's not normally how it goes."

From Meme to Money

The litigation has expanded beyond Tung Tung Sahur to dozens of brainrot characters that have appeared in "Steal a Brainrot," although the parties disagree on how much of that larger universe is actually in dispute.

Italian brainrot is an internet phenomenon that took off in early 2025, featuring characters with names like Ballerina Cappuccina, Chimpanzini Bananini and Blueberrinni Octopusini. That the trend has little to do with Italy beyond the Italian-sounding names is part of the joke, and the label has encompassed characters like Tung Tung Sahur. The character's name itself varies, with two "Tungs" sometimes used as shorthand in court documents, three in other filings and nine in the TikTok video about its creation.

Tung Tung Sahur was created by Indonesian digital artist Fernanda Bagas Indrastata, known professionally as Noxa, who drew on the tradition of striking wooden kentungans, or wooden slit drums, to wake people for sahur, the pre-dawn meal eaten before fasting during Ramadan. He developed the character and incorporated the image into a narrated TikTok video in February 2025. Mementum later acquired worldwide rights to the character's name and image from Noxa.

The commercial stakes are substantial, even if the cast of characters sounds like the product of an internet fever dream. Mementum said in court documents that "Steal a Brainrot" reached more than 20 million simultaneous players in late 2025, logged more than 56 billion visits by early 2026 and generated tens of millions of dollars in revenue.

The game's commercial reach has also expanded into collectible minifigures, T-shirts and sticker sets, other gaming platforms and a feature film in development, according to the gaming companies.

Stacey Lantagne, a copyright and trademark professor at Suffolk University in Boston, said the dispute captures what happens when the freewheeling culture of viral memes collides with a commercial market.

"It's all fun and games until there's real money involved, and then it's everything," Lantagne said.

After Mementum's cease-and-desist letter, the gaming companies removed Tung Tung Sahur from "Steal a Brainrot" and began licensing negotiations, but the talks broke down. The game still features several characters that Mementum has called confusingly similar to or derivative of Tung Tung Sahur, including Te Te Te Sahur, Los Tungtungtungcitos and La Sahur Combinasion, according to court documents.

"Creators should be able to share in the fruits of their labors," said Steve Stein of Greenberg Glusker LLP, an attorney for Mementum. "'Steal a Brainrot' has generated ungodly amounts of money using these brainrot characters."

The gaming companies argue that Tung Tung Sahur was already a widely circulating meme before Mementum built a licensing business around it — the reverse, they say, of characters such as Mickey Mouse and James Bond, which were commercially exploited from the outset by a single owner.

The gaming companies say that trajectory makes it difficult to show that consumers saw Tung Tung Sahur as identifying a single commercial source rather than simply as part of internet culture.

"These were memes. The public associates them with the meme and the character, not with Mementum," said an attorney for the gaming companies, Aaron Moss of Mitchell Silberberg & Knupp LLP.

Mementum counters that viral popularity does not foreclose later trademark rights. It points to cases recognizing trademark protection for characters including DC Comics' Batmobile and Toho Co.'s Godzilla, and argues that Tung Tung Sahur can identify a single commercial source even if consumers cannot name Mementum, so long as they understand its commercial uses to be authorized by one "commercial gatekeeper."

An AI Copyright Test, Maybe

The case also highlights a developing trans-Atlantic tension over how copyright law should treat works created with generative AI, and Tung Tung Sahur's creation presents a concrete example of that rift.

In materials Mementum submitted in European proceedings seeking to invalidate an individual's trademark registration for Tung Tung Sahur, the company detailed how Noxa produced the character over the course of 15 minutes, beginning with the prompt to "draw a pentungan sahur with a face and legs" and eventually arriving at instructions as spare as "human face" and "big leg, face like a human."

In the proceedings before the European Union Intellectual Property Office in July, Mementum relied on Noxa's asserted copyright in Tung Tung Sahur under French law. Moss said that shows Mementum leaning on copyright where it helps in Europe while trying to avoid the same copyright question in the U.S.

Stein said Mementum has simply narrowed the U.S. dispute. In May, it issued a covenant not to sue Spyder and Speedy for U.S. copyright infringement involving 17 brainrot characters based on their past, current or substantially similar future use in "Steal a Brainrot," and argues that the promise eliminates any live copyright controversy. The gaming companies maintain that the covenant is too narrow because it leaves out 22 additional characters and uses outside the game, including the planned movie.

Stein said litigating the copyrightability of 17 separately created characters would amount to fighting "17 different cases" and Mementum has little incentive to make this dispute the first U.S. test of AI-assisted character copyrightability.

"Do you want to risk it being the first one out there?" Stein said.

He also said focusing only on Noxa's prompts misses a larger creative process that included conceiving and naming the character, repeatedly directing and selecting AI outputs, and later adding narration, music, editing and visual effects.

"To be clear, we don't believe how Tung Tung Sahur was created is at issue in our lawsuit," Stein said.

Trademark as a Copyright Substitute?

Copyright's human authorship requirement does not carry over to trademark law. An AI-generated character could theoretically function as a trademark because trademark law asks whether consumers perceive it as identifying the source of goods or services, not how a character was created, said Olivia Clavio of Faegre Drinker Biddle & Reath LLP.

But that does not mean fame alone is enough. The question, Clavio said, is whether consumers see Tung Tung Sahur as indicating a source rather than simply as "this funny brainrot character that's running around in a Roblox game." 

WilmerHale's Louis Tompros encountered a related problem when he represented Pepe the Frog creator Matt Furie in copyright litigation against Infowars over unauthorized Pepe merchandise. Infowars argued that the copyright in the frog cartoon, which had become an online symbol for white nationalists, had been weakened by its widespread "meme-ification." A federal judge rejected the notion that becoming a meme, by itself, destroyed or diminished Furie's copyright rights. The case later settled.

Furie drew Pepe himself, so AI authorship was not an issue. But Tompros said his team chose copyright rather than trademark claims because the cartoon's ubiquity complicated whether consumers understood the character as identifying a commercial source.

"They're going to have to show that people don't just see this character and think, 'Oh, that's a cool character,' but see this character and think, 'Oh, that character is associated with some particular person or source or company,' in the same way that Mickey Mouse is associated with Disney," Tompros said. "It's a hard thing to prove."

That is also where the Supreme Court's 2003 decision in Dastar Corp. v. Twentieth Century Fox Film Corp. could come in. The high court held that trademark law's concept of "origin" generally concerns the producer of the goods sold, not the creator of underlying expressive content, warning against turning the Lanham Act into "a species of mutant copyright law."

The gaming companies argue that Mementum is trying to do exactly that by using trademark law to control allegedly unprotectable creative content.

"So in other words, if the character isn't copyrightable, you don't get a second bite at the apple just by calling it a trademark," Moss said.

That leaves the court with a question Tompros said remains unsettled: "When, if ever, can a meme be a trademark?"

--Editing by Karin Roberts.

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