[This piece has been authored by Tejaswi D. Shetty, a student at SDM Law College, Mangalore.]

Introduction

Networking through the internet has been active for many years and over time, the notion of ‘meme culture’ has set its trend, becoming a source of entertainment for all. The humour involved, along with illustrations or captions or photos or movie extracts, imposes a comedic element everywhere on the internet. The creators of memes may be enthusiasts, professionals with a creative bent, artists, or any other common individuals. Memes often function as a parody of existing copyrighted material, which means they make use of existing copyrighted work as a guide or model to generate new content. Therefore, it is necessary to understand, if these supposedly joyful memes violate the copyrights of the original copyrighted work.

Do Memes infringe Copyright Laws?

A meme is an artefact that incorporates creative expression and perceptions. Accordingly, it meets the definition of ‘artistic works‘ under the Indian Copyright Act, 1957. Furthermore, the primary content used as a framework or basis to produce a meme is not the creator’s work, but rather a copyrighted work. When an image or video clip is distributed without the authorization of the owner or content creator, it is deemed a copyright infringement or breach and falls under the definition of ‘infringing copy‘. For example, the images used in Game of Thrones memes are the ownership of the show’s creators. Copyright law protects not only the motion picture but also every other aspect of the work, including still photographs.

Section 14(d) of the Indian Copyright Act authorises the making of a copy of the film, including a photograph of any picture forming a part of it. It means that the creation of a meme must be preceded by prior authorisation from the person who owns the copyright of the content. Though this would infer that memes were created from a copyrighted work and are thus infringing the same, it was determined in University of London Press v. University of Tutorial Press that the work must be the author’s creation. It is the originality of expression, not the originality of the thought, that is important. This approach is built on the principle that a new expression created from a copyrighted work should not be copied. This is observed all across the world, including India.

The fundamental goal is to determine if a meme has been substantially modified from an original copyrighted work or whether it adds a fresh expression to the original material. If viewers or readers receive the idea that a specific meme is just an imitation of the original content, then whatever the meme’s ultimate product is, it will be infringing on the copyrighted work. Despite the fact that a meme may only be produced with original copyrighted material as a model or guide, it is considered an infringing work if it involves significant imitation.

An internet meme is essentially using another’s work for one’s interests without the authorization of the original work’s copyright owners. In most circumstances, this would be an obvious example of infringement. In the case of memes, however, this is not necessarily correct. Memes are created for a variety of reasons. A meme, for instance, may be created only for the purpose of amusement and not be marketed in any way. In these circumstances, the Indian Copyright Act provides infringement protection through the defence of ‘fair use’.

Defence of Fair Use

The ingredients in the meme are subjugating to the creator’s wit or creative thought, the copyrighted work, as its holistic framework, may call into doubt the legitimacy of being violated. In such situations, the legal doctrine of fair use can be used. Since memes are often created for the sake of entertainment or amusement rather than for commercial gain, Section 52(1)(a) of the Copyright Act 1957 enshrines the idea of fair dealing to assist meme creators in avoiding infringement penalties.

Fair dealing, as included in the UK’s copyright law, has been chastised for being unduly restrictive, with several exceptions. Fair use has been considered as a more substantial conduit for users in the United States. In Campbell v. Acuff-Rose Music, Inc. the court laid down the following four-factor test to determine the liability of the fair use defence:

• the purpose and character of the use, including whether such use is of a commercial nature
• the nature of the copyrighted work
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole
• the effect of the use upon the potential market for or value of the copyrighted work

The TRIPS principle of fair dealing is quite like the notion of fair use in the United States. These standards have also been recognised by Indian courts as precedent in deciding whether an act constitutes fair dealing. The Delhi High Court upheld the four-factor criteria for fair use established in Campbell’s case and ruled that the factors cannot be employed in isolation but must be evaluated together and analytically to assess whether the fair use concept applies.

Later, in Blackwood And Sons Ltd. And Ors. v. A.N. Parasuraman And Ors., the court urged two points connected with the meaning of the expression ‘fair’ in ‘Fair dealing’ – (i) that to constitute unfairness, there must be an intention to compete and to derive profit from such competition and (ii) that unless the motive of the infringer were unfair, in the sense of being improper or oblique, the dealing would be fair. The Court’s reasoning is that one party should not be allowed to profit financially on the efforts of another and fair use is a comprehensive area that is open to interpretation and additional contemplation.

Protection of Meme Creators under Copyright Law

Memes can be broadly divided into four categories, namely, cinematographic stills, rage comic memes, personal photographs and original works. Some of these categories are protected under the fair use doctrine, while the others do not meet the prerequisites:

(i) Creating Memes – With the above understanding of infringement policies associated with memes, this part explains how copyright protection will affect the creation of new memes. Because memes are typically derivatives of copyrighted content, the authors’ copyright protection may only apply to the work they’ve put into it, not to previously published material. The owner of the image and the person who created the meme using that image are likely to share copyright ownership. Only meme creators’ material, such as jokes, remarks, or other graphic adjustments, is protected by copyright. They do not have sole ownership of the copylefted picture they used in memes.

For example, AIB, an Indian comedy group, tried to cash in on the project’s success by creating a series of humorous memes based on visuals from HBO’s Game of Thrones series. Rather than being amusing, the goal was to market the products of companies that had backed AIB. This behaviour goes against the spirit of the fair use idea. Even if the meme created is a “completely new” phenomenon to the already existing copyrighted work, the fair use theory will not protect it.

(ii) Sharing Memes – The meme creator merely does not repost the photo but instead overlays text on it or changes it in some manner, changing the artwork’s original nature into something new and therefore constitutes fair use. It should also be noted that mere reposting of a meme on social media platforms would get the benefit of fair use. However, in the instance of AIB, if another person utilised their meme without their logo or trademark and claimed it as their own, AIB would be right to take legal action against that person. All of these situations, however, will be evaluated based on the facts and circumstances of the case because there are no precedents in Indian courts on this topic, the technicalities of the problem will stay in the shape of arguments.

Conclusion

In the social media domain, it is necessary to understand the liability of these memes under intellectual property rights. The foundation of a meme is based on the work of already existing copyrighted material. Thus, it falls into the provision of infringement under copyright laws. To safeguard from any litigation, the creators can use the defence of ‘fair use’.

By looking at the facts and authenticity of the memes, the defence of fair use is viable. The fair use concept will not save a meme from infringement if it is used for commercial advantage or to put a product or person in jeopardy. Although most individuals who distribute memes on the internet are not doing it for profit, that does not mean they are not violating the copyright mentioned in the memes.

While copyrighted material owners have the right to pursue claims against people who generate memes for amusement purposes, they may opt not to do so in the great majority of situations, as bringing infringement action against individuals would be a futile and tiresome process. In India, because there are no precedents in Indian courts on this topic, the technicalities of the problem will stay in the shape of arguments.