Introduction

The Internet now-a-days is full of memes that social media serves no fun to its audience without them. A “meme” is nothing but generally an image, video or GIF that has been created in such a manner to share humour on the internet.

“Social media is not a media. The key is to listen, engage, and build relationships.”- David Alston

As rightly said by Sir David Alston, social media is a powerful tool by which the general public can convey their ideologies and point of views and thus, memes being the largest occupier of the social media platforms, have so much potential that it can lighten one’s mood, influence the ideas, shape the opinions of the general public and thus create a light-hearted space for conversations. Not only this, memes have a whole commercial business and a potential monetization market for which its makers are getting enough earning.

There’s no doubt that memes have clearly dominated every available corner of social media. Despite this, very little attention has been given to the intellectual property attached to them, leading to many being unaware of this issue.

 Like other artistic works, a meme can also be considered as its author’s own intellectual creation and thus copyright can arise automatically with it. Copyright laws in India provide the creators of the artwork, some rights by which they can claim against anyone who uses, distributes, sells or exploits their work without their permission or consent. This prevents their work from being infringed or misused.

Memes also give rise to a complex copyright conundrum that, “Whether someone’s use or transmission of meme can deprive the meme maker’s right?” 

This research paper will take into account the above said issue and it will also elaborate the doctrine of “fair use” which is a legal doctrine that promotes freedom of speech and expression by permitting the unlicensed use of copyright-protected works in some circumstances which serves as the defence for copyright infringement.

 THE FUEL OF SOCIAL MEDIA – MEMES

Richard Dawkins, an evolutionary biologist, coined the term “meme” in his book “The Selfish Gene” in 1976. Dawkins defines meme as a unit of cultural meaning which is passed from one generation to another such as a value or an idea. According to some of the renowned researchers namely Jones and Schieffelin, Bennett and Burgess, they treated a meme as a prism for knowing and understanding certain aspects of contemporary culture.

But in recent times the meaning attached to the word- “meme” has changed a lot. Merriam-Webster dictionary defines meme as “an idea, behaviour, style or usage that spreads from person to person within a culture or through online modes especially through social media.” Memes can be divided into the following four categories:

1. Cinematographic stills
2. Comic memes
3. Video animation 
4. Photographs

Social Media and memes always go hand in hand. According to the HubSpot Report, “memes are big amongst younger generations, with 55% of 13-35-year-olds sending memes every week. Over the last year, that number has grown. Mentions of memes increased over the last 13 months, from 19.8M mentions in August 2019, to 24.9M in July 2020 (+26%), with a peak of 28M during April 2020. Users turned to them for engagement and escapism while under lockdown.” Thus, it can be rightly said that each and every meme present on social media platforms act as fuel on which social media runs on.

MEMES AND COPYRIGHT

Although it is enticing to think that the viral content which is available simply comes from the Internet and therefore belongs to the public, this is not the case. The creator of the meme has a special right that is Copyright attached to the meme. The Copyright law in India is governed by The Indian Copyright Act,1957 which was primarily enacted with the following two objectives:

1. To encourage original work

It encourages the creators such as authors, composers, artists, and designers to create original works. The act simultaneously awards these creators with the exclusive rights for a limited period to use these rights for further monetary gains.

2.  Protection to the Originator:

The second objective of copyright law is to protect the creator of the original work from its unauthorized reproduction, use and exploitation.

Like other original works, creation of meme being the author’s intellectual property, comes under the ambit of artistic works which is defined under Section 2 (c) of Indian Copyright Act, 1957.

According to Section 2 (m) (i) of the Indian Copyright Act, 1957 defines “infringing copy”, which states that a copyright infringement will happen when a photograph or video is disseminated without creator’s permission.

One can infringe meme-creator’s right in the following ways:

1.   When the expressions used in the meme, are in the form of art illustration, photograph, video, cinematographic scene, symbol, emoticon, etc. and the content used is some other person has copyright over the content used along with their own caption.
2. When the meme is reshared as it is without giving proper credits to the owner.

In other words, it can be said that a copyright infringement takes place when proper authorization and consent from the copyright owner is missing.

This implies that the sharing or reproduction of a meme should be supported by prior consent from the individual who owns the copyright of the content prior to utilising the same. This is also supported by Sec14 (d) (i) of the Indian Copyright Act, 1957. Without the consent, if the meme is reshared for exploiting it on commercial grounds, then it can lead to the violation of the creator’s right.

As per the Indian copyright laws, creators can protect their copyright in almost any country in the world and the appropriate actions taken under the Copyright laws can stop people from infringing other people’s content. Infringement of copyright in India is also an offence punishable with imprisonment and fine.

DEFENCE FOR COPYRIGHT INFRINGEMENT

An important piece of law which acts as the legitimate defence for meme-creators is the Fair Use Doctrine which is defined under Section 54 (1) of Indian Copyright Act, 1957 that enables one person to actually take someone’s work without permission and use it.

In the case of Campbell v. Acuff-Rose, it was said that “Some idea of fair use is necessary to fulfil the purpose of promoting arts and sciences.”

When can the fair use doctrine can be used as defence in India:

There are following three conditions regarding the same:

1. MARKET SUBSTITUTION TEST: Any intention relating to the competition with the copyright holder must not be there. The main purpose of a meme is just to put comic and does not seek to compete with the right holder.

2. IMPROPER USAGE: The improper usage of the content must not be done and thus it should not be offensive to the right holder.

3. COMMERCIAL VALUE: Memes having no commercial value can fall under the ambit of fair use doctrine.

So, if the case falls under any of the three conditions, then the fair use doctrine comes into picture and the person using another person’s original work has a chance to defend himself. Thus, the use of this doctrine requires a case to case analysis of facts and circumstances and no blanket protection can be granted.

POSITION OF MEME-COPYRIGHT CASES:

Till date, no lawsuit related to meme copyright has been filed in India and thus the jurisprudential aspect is unexplored. But some cases have been filed in the United States, two of such suits are:

a.     The lawsuit of Warner Bros

In this case, the company utilized popular meme characters: Nyan Cats and Keyboard Cats as creatures in their video game and thus Warner Bros was forced to pay a $100 million fine for the same.

b.     Copyright issue of Grumpy Cat meme

The Grumpy Cat Ltd. reportedly filed a lawsuit against the founders of Grenade, a coffee chain based in the United States which just had the license to use the cat to promote their “Grumppuccino” frozen beverage, but it also marketed other Grumpy merchandise. The Grumpy Cat Ltd. was compensated $710,000 as damages for copyright infringement.

WHAT IF YOUR PICTURE HAS BEEN TURNED INTO A MEME?

The Doctrine of fair use works until someone’s privacy is not disturbed. A meme violating the Right to Privacy of any person given to us under Article -21 of the Constitution, will render the creator of the meme to exercise his defence of Right to Speech and Expression enshrined under Article 19. No meme served for the purpose of fun, can violate someone else’s privacy and just like the above lawsuit of Warner Bros, the person aggrieved will have the right to sue the violator. 

CONCLUSION:

The most important factor contributing to meme copyright infringement is the lack of awareness of this issue. Users need to be well- acquainted with the laws and principles relating to copyright infringement and how sharing someone else’s original work with due credits can prevent them from a huge litigation expense.

Memes should only serve the purpose of fun and entertainment to the public without violating the rights of any individual. Also, it should not be created for the purpose of commercial exploitation. One should procure necessary consent and license from the source person to avoid any legal liability in the near future.

Even though Copyright law in India does not specifically provide any remedy in the case of meme infringement, the owner of such artistic work still has the right to reach the Court for infringement of his Copyrighted work if it is not a “fair use”.

 

Written By –
Shivalika Verma

 

 ¹David Alston, The Evolution from Social Media to Relationship Capital, (2013).

² RICHARD DAWKINS, THE SPECIFIC GENE (Oxford University Press 1956).

³ Limor Shifman, Memes in a Digital World: Reconciling with a Conceptual Troublemaker, 18 JOURNAL OF COMPUTER-MEDIATED COMMUNICATION, 362-377 (2013).

 ⁴ Brittney Lopez, 2021 Social Media Trends: Meme Marketing, GREEN FOX MARKETING SOLUTIONS (11 Nov 2021, 5:29 PM), https://greenfox.io/our-blog/page/3/

⁵ Indian Copyright Act, 1957, No.14, Acts of Parliament, 1957 (India).

⁶ Indian Copyright Act, 1957, & 2, No.14, Acts of Parliament, 1957 (India).

⁷ ibid.

 ⁸ Indian Copyright Act, 1957, & 14, No.14, Acts of Parliament, 1957 (India).

 ⁹ Indian Copyright Act 1957, & 54, No.14, Acts of Parliament, 1957 (India).

 ¹⁰ Campbell v. Acuff- Rose, 510 U.S. 569 (1994).

 ¹¹ Warner Bros. Entertainment v. WTV Systems, (1937) 1 KB 209.

 ¹² Grumpy Cat Ltd. v. Grenade Beverage LLC.