By Palak Rambhiya
Definition of Meme-
An element of a culture or system of behavior passed from one individual to another by imitation or other non-genetic means.
An image, audio, video, text, etc., typically entertaining/comic in nature, is copied and spread rapidly by Internet users, often with slight variations.
A meme is a concept or carriage that spreads from person to person. Examples of memes include beliefs, fashions, stories, and phrases. In previous generations, memes typically spread within local cultures or social groups. However, now that the Internet has created a global community, memes can span countries and cultures across the world. Memes that are spread online are called “Internet memes.”
1What is copyright?
Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.
Exhaustive lists of works covered by copyright are usually not to be found in legislation. Nonetheless, broadly speaking, works commonly protected by copyright throughout the world include:
- Literary works such as novels, poems, plays, reference works, and newspaper articles;
- Computer programs, databases;
- Films, musical compositions, and choreography;
- Artistic works such as paintings, drawings, photographs, and sculpture;
- Architecture; and
- Advertisements, maps, and technical drawings.
Copyright protection extends only to expressions and not to ideas, procedures, and methods of operation or mathematical concepts as such. Copyright may or may not be available for a number of objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.
So the question arises that, since a meme is content created by someone and passed from one person to another through the internet, does the creator of the meme have copyright over such creation?
When internet memes started spreading over social media, one would have never imagined that it would become such an important tool for expressing ideas or campaigns.
In this article, we shall explore the copyright issues involved in creating and sharing a meme, the law governing the copyright, and the circumstances under which creating and sharing memes can be considered ‘fair use’.
A meme would fall under the ambit of ‘artistic works’ which is defined under the provisions of section 2(c) of the Copyrights Act, 1957 which states that an artistic work includes paintings, sculptures, drawings, engravings, photographs, works of architecture and works of artistic craftsmanship. As mentioned earlier, an image/photograph in a meme is mostly copyrighted, thus using and sharing such meme without any authorization will constitute an infringement. Any kind of creation/reproduction by way of distribution and sharing of the meme would come under the ambit of being an ‘infringing copy’ as provided in section 2 (m) (i) of the Copyright Act, 1957.
When we talk about the creation of a meme, we need to set on whether the meme that has been created constitutes copyright infringement in itself or it can be considered as an ‘original work’. Here two situations may arise – one, the meme contains an image from a movie/photo (copyright of which vests with another person), and second, the meme is an ‘original meme’ (where the copyright in the image vests with the person who has created the meme).
When somebody creates a meme using his own photograph, the meme so created will not attract any copyright infringement because of the rights in the image as well as the copyright in the “meme” image vests in the same person. Such memes can be called artistic work which is created by exercising one’s own skill, labor, and creativity, and does not infringe upon existing copyright. In such a case too, the sharing of memes by others may amount to copyright infringement and the creator of memes will be able to injunct others from using his meme without a license.
The purpose of sharing memes is to promote an idea within the social media community and one may always argue that the act of creating/sharing memes should be protected under the fair use provision.
In order to successfully gain fair use defense in India, a creator has to satisfy two conditions: (a) the intention to compete with the copyright holder must be absent, and (b) improper usage of the original photograph/image/video must not be done
Section 52 (1) (a) of the Copyright Act of India allows for ‘fair dealing with any work’ for the purpose of private or personal use, criticism or review, etc. The problem however will arise if the meme is used for the purpose of advertising or to generate some economic benefit, this is because the meme is now used not for the purpose of satire but for commercial exploitation.
To date, India has not witnessed any memeology litigation. 2But in the USA, Warner Bros faced litigation under Copyright infringement after they used the famous ‘Nyan Cat’ and ‘Keyboard Cat’ in their game Scribblenauts and had to pay heavy compensation to the plaintiffs. (Charles L. Schmidt V. Warner Bros Entertainment Inc., 2013)
3 Section 63. The offense of infringement of copyright or other rights conferred by this Act.
Any person who knowingly infringes or abets the infringement of—
(a) the copyright in a work, or
(b) any other right conferred by this Act except the right conferred by section 53A, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of fewer than six months or a fine of fewer than fifty thousand rupees.
3 Section 64. Power of police to seize infringing copies.—
(1) Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offense under section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purposes of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a Magistrate.
(2) Any person having an interest in any copies of a work, or plates seized under sub-section (1) may, within fifteen days of such seizure, make an application to the Magistrate for such copies, or plates being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deem fit.
3 Section 66. Disposal of infringing copies or plates for purpose of making infringing copies.—
The Court trying any offense under this Act may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies or plates for the purpose of making infringing copies, be delivered up to the owner of the copyright or may make such order as it may deem fit regarding the disposal of such copies or plates.
One may conclude that the use of memes on social media is generally ‘fair use; however, in the case of advertising campaigns the advertiser must seek a license from the copyright holder before using such memes.
1 Word Intellectual Property Organization.
2 (2:12-cv-02824, District Court, C.D California.)
3 The Copyrights Act, 1957.