Memes have gotten so common that social media would be uninteresting to its audience and users if they didn’t have them. Memes have enormous potential in moulding ideas and influencing public opinion in India, particularly when it comes to political communication. Memes have grown in popularity swiftly, owing to the fact that whenever a problem arises in the world, people find a method to address it and share it hilariously. Memes and social media go hand-in-hand, with memes serving as the gasoline that keeps social media running. But have you ever considered the copyright difficulties that come with sharing a meme online, or what the possible defenses are for such copyright issues? Let’s take a look at the situation.
TYPES OF MEMES
There are basically two types of memes:
- The first form is when the meme creator or the “memer” creates a meme by using images or videos from original content. Many memes, for example, use the character of ‘Chandler Bing’ from the popular television sitcom ‘Friends’ to convey sarcasm.
The makers of the show would own the copyright on the image of ‘Chandler Bing’ in this case. The memer, who is not the original creator of the image, is duplicating it and using it to illustrate his point. As a result, if the show’s creators can show that the meme violates their copyright, they may be able to prevent it from being disseminated.
- The second form occurs when the meme was made by the memer using images and videos, with the underlying copyright belonging to him. A meme like this might be characterised as an artistic work created by one’s own talent, labour, and judgement, among other things, that does not infringe on a copyright. However, distributing or reproducing memes without the memer’s permission may be deemed copyright infringement, and the creator of the “memed” image may be able to prevent others from using it without permission. The memer’s liability for copyright infringement is determined by the photographs or videos that he or she uses.
The question then arises, is whether the meme was illegally hijacked by using a significant or material piece of the original copyrighted work, or whether an essential aspect of the artist’s original concept was substantially duplicated.
PROTECTION UNDER INDIAN COPYRIGHT ACT, 1957
The argument in favour of the memers is that they have the right to use such material because they are doing so in accordance with the notion of “fair use”. Fair dealing with a literary, dramatic, musical, or artistic work that is not a computer programme, as defined by Section 52 of the Indian Copyright Act 1957, lays down certain acts or works that cannot be considered an infringement of copyright, namely fair dealing with a literary, dramatic, musical, or artistic work that is not a computer programme for the purposes of-
- “private or personal use, including research;
- criticism or review, whether of that work or of any other work;
- the reporting of current events and current affairs, including the reporting of a lecture delivered in public”.
In the case of Blackwood & Sons Ltd. v. A.N. Parasuraman, it was held that: “In order to constitute fair dealing, there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.”
EXCEPTION TO THE APPLICABILITY OF FAIR USE DOCTRINE
However, there is no defence available in favour of the meme creator if the meme is intended to harm society or if it infringes the Right to Privacy guaranteed by Article 21 of the Indian Constitution. In fact, in such instances, the memer is unable to defend his right to freedom of speech and expression, which is enshrined in Article 19 of the Indian Constitution.
In a number of cases, Indian courts have ruled that the freedom to criticize or copy another person through memes is not exclusive and is limited to the extent that the other person’s rights are not harmed. For example, BJP Youth Wing leader Priyanka Sharma (Defendant) was recently ordered to apologize to the notable leader and West Bengal Chief Minister Mamata Banerjee for defaming her character on social media by sharing a morphed image of her. Despite the fact that the Defendant claimed she did not “make” the meme and merely “shared” it for a laugh, the Supreme Court refused to give her any leverage. The Supreme Court ruled that freedom of expression and speech cannot be restricted in any way, but faces its end when such freedom violates the rights of other people.
According to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, if a meme is against India’s sovereignty and integrity, security, friendly relations with foreign states, and so on, the meme creator/first originator can be identified by the intermediaries (Facebook, Instagram, etc.) through a judicial order or other competent authorities listed in Rule 4(2) of these rules
In India, no lawsuits involving meme copyright have been filed yet, therefore the jurisprudential side is yet to be examined. Warner Bros.’ complaint in the United States proves one such case of copyright infringement, in which the firm used the popular memes Nyan Cat and Keyboard Cats as animals in its video game Scribblenauts. Warner Bros. was fined $100 million for profiting off a racist meme.
The owner of the Grumpy Cat meme had also filed a lawsuit. According to reports, Grumpy Cat Limited filed a lawsuit against the creators of Grenade, a coffee company based in the United States, for breaching an agreement regarding the cat’s image. The company only had a license to use the cat to sell their frozen beverage “Grumppuccino,” but it also sold other Grumpy goods. For copyright infringement, the Grumpy Cat Limited was awarded $710,000 in damages.
The Four Factor Test for fair use was established by an American court in Campbell v. Accuff – Rose Music, which also said that factors should not be restricted to judging the damage caused to the copyright owners in the market, but should also consider the unfavorable impact on potential markets.
One of the main issues contributing to the perpetuation of meme Copyright infringement is a lack of knowledge and sensitization. More people need to be educated about the existing regulations and the principles of resharing someone else’s work with proper attribution. Additionally, copyrights for meme creation templates such as images, video clips, and other media must be made more accessible and affordable for individuals.
Not only should Companies be bound by copyright laws, but so should individuals who profit from infringing on the creator’s copyrights. In today’s complex online environment, solutions must take into account the unique qualities of social media, such as its rapid dissemination and ability to reach a worldwide audience in real-time, and enact legislation to meet those needs. Therefore, the next time you share a meme, make sure to give credits to the original meme creator.
- Grumpy Cat wins $710,000 payout in copyright lawsuit, BBC News ( Jan. 24 2018) https://www.bbc.com/news/world-us-canada-42808521.
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