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IN THE MEME TIME: EXAMINING THE COPYRIGHT DILEMMA IN MEMES

April 1, 2024

*Ms. Aditi Pandey and **Ms. Jyothi Natarajan

INTRODUCTION

The youth population is present on almost every social media platform, and sharing memes as a form of communication is common, forming a huge part of the internet today. Major brands such as Netflix, Amul and Zomato have also adopted these memes as a marketing strategy to attract a new set of customers. Thus, the question arises of what rights does the creator of the original content have in a meme derived from the original work. This blog discusses the relationship between memes and copyright by understanding its legal position.

What are Memes?

Memes are humorous visual or audiovisual creations for enjoyment and entertainment. They are often accompanied by satire, parody, sarcasm, or straightforward jokes. Memes leverage diverse images or snippets sourced from the vast array of media found on the Internet. Therefore, they often function as parodies of existing copyrighted material, which means they use existing copyrighted work as a guide or model to generate new content.

In 1976, British evolutionary biologist Richard Dawkins published in his book the term "meme," which is derived from the Greek word "mimema," which means "imitated." "The Selfish Gene." Memes were later popularized in 2005 by Matt Furie with his “Pepe the Frog” cartoon.

JUSTIFICATION

John Locke’s Labor Theory – The Lockean Labor Theory asserts that individuals who invest their skill, effort and creative labor into intellectual work should rightfully own that work. Creating a meme involves mixing one's labor (creative effort, editing skills, humorous observation) with common resources (existing images, cultural references). A meme like this may be defined as an artistic work made by one's own talent, labor, and judgement, etc which does not infringe on an existing copyright.

For example - In the movie, Once Upon a Time in Hollywood (2019) a fleeting shot of Leonardo DiCaprio's character, pointing towards the television became an instant meme template. This shot would be subject to copyright by the movie producers and owners. However, when the shot is coupled with an individual’s labor in coming up with funny caption, that shall become the intellectual property of the meme creator.

Copyright, like Locke's concept of property rights, can incentivize meme creators. If their creative twist on copyrighted material is protected, they could potentially control its use and even profit from it through licensing or sponsorships.

Like, in the case of the Success Kid in 2007, which was just a meme featuring a baby with a clenched fist and determined expression, superimposed onto triumphant backgrounds. The mother, who clicked this photograph obtained copyright registration for the image in 2012 and subsequently licensed it to multiple advertisers. She capitalized on the meme's fame by creating a social media presence associated with it and has profited through brand endorsements like the Super Bowl 2015 Coca-Cola Ad and merchandise sales (on t-shirts and mugs) featuring the meme.

While original meme creators have rights, others should be able to create new derivative memes through their own labor if they do not merely replicate the original verbatim. The transformative nature of many memes, which add new meaning or commentary to the original works, could be considered a form of labor that creates a new property interest under Lockean theory, potentially covered by fair use exceptions.

Hegelian Personality Theory – Hegel's philosophy places great importance on self-expression and the recognition of individual contributions by society. According to Hegelian thought, when individuals create a work, they incorporate it with aspects of their personality and individuality. Their creative thought process is intertwined with personal growth and the development of one's identity. For example – student memes, introvert memes, workplace memes, relationship memes and pet memes.

By granting exclusive rights over their creations, individuals are afforded the opportunity to protect the work itself and the expression of their personality that manifests within it. These rights extend beyond mere monetary interests to protect their personal integrity and self-expression. This theory purports that just as one has property rights over physical objects, individuals have a moral right to the products of their intellectual endeavours. Protecting intellectual property rights should be seen as an encouragement of ethical work and contributions to society.

For example, in the "Woman Yelling at Cat" meme, the woman and the cat are depicted in expressive poses that convey emotions. They give the audience a visual form of the internal battle between opposing viewpoints or desires we all face, making it relatable. The woman's anger and frustration, as opposed to the cat's bewildered expression, reflect the range of human emotions and interactions.

Through creating and sharing this meme, individuals express their own emotions and experiences, finding recognition and validation from others who can relate to similar situations. Each iteration of the meme reflects the creator's unique perspective and contributes to the ongoing evolution of the meme's cultural significance.

ARE MEMES COPYRIGHTABLE?

Section 13 of the Copyright Act of 1957 deals with the subject matter of copyright, and artistic works fall under this section. This means they will be protected when made by artists. As per Section 2 (c), photographs will be included in the definition of artistic work.

Memes, in general, can be of two types: memes made by an individual either in video or graphic format or memes that originate from individuals who utilize images or videos taken or made by someone else. As discussed above, the former will be considered as the creator's original work. The latter, however, will be considered as an infringement when the creator uses the image to make a meme without prior consent or knowledge of the original author, as it will fall under the ambit of copyright protection.

In the case of ‘Aamir Raza Husain and Another v. Cinevistaas Limited and Others’ it was held that “the idea in providing the copyright a statutory protection is to encourage art and originality and not to stifle it”. This tells us that even the courts are hesitant to grant copyright protection to memes as they can be considered unoriginal, and it also holds back artists from creating new material.

The court in ‘Eastern Book Company v. D.B. Modak’ talked about derivative works that are based on existing subject matter and talked about how material that is assembled or organized without significant effort, labor, or skill does not qualify for copyright protection.

FAIR USE

Many meme creators often rely on the fair use doctrine to defend themselves in copyright conflicts, as it typically stems from pre-existing works. Fair use entails the privilege to utilize copyrighted material under specific circumstances, without seeking approval from the copyright owner. As per Section 52 (a) of the Copyright Act, fairness can be applied when the work is used for personal use, criticism, review, teaching, etc.

As per the case of ‘Blackwood & Sons Ltd. v. A.N. Parasuraman’ for a meme to fall under fair dealing it must not be made to compete with the original owner, the creator shall not gain any profits out of the use of the meme and the dealing must not be improper. The landmark case of ‘Campbell v. Acuff-Rose Music, Inc.’ laid down the four-factor test that can be used to determine whether a meme is infringing certain rights or not. The first factor is the purpose of the meme, this means the meme must be made only for entertainment purposes and not for any commercial purposes. It must also not contain any offensive material that targets an individual or group of individuals. The second factor is the nature of work, usually meme will fall under artistic work and is based on existing work and defense won't apply if the meme creator uses content from an unpublished work. The third factor is the amount and substantiality of the work, this essentially means it is important to consider how much of the material has the creator used to create the meme. If a single instance, joke or still frame is taken then then doctrine can be applied as it does not take away the essence of the show or video. The last factor to consider is the effect on the potential market, although the viewers of meme and original work may be different, it is fair use only when it is used in social networking apps or sites. However, if it is used for advertising purposes the prior consent.

Conclusion

In India, memes have traditionally been viewed as trivial and solely for entertainment purposes, failing to garner recognition as intellectual creations. Consequently, the potential protection of memes under the Copyright Act of 1957 has remained largely unexplored. However, this perception undermines creative labor and skill in crafting memes. Like photographs or other artistic works, memes should be acknowledged as products of individual expression and given similar importance.

The United States has set a better precedent in the legal status of memes, with the "fair use" doctrine generally allowing the existence of Pepe the Frog memes in the Furie v. Infowars case. India has yet to witness concrete cases addressing memes' legal status, making it difficult to predict their outcome. India should recognize memes as valuable creative expression, deserving intellectual property protection like traditional art forms, with appropriate limitations. Accepting this perspective will cultivate an environment favourable to creative innovation and respect for individual contributions in the digital realm.References:

1. Saumya Tripathi, Are Memes Protected by Copyright Law? INSTITUTE OF INTELLECTUAL PROPERTY RESEARCH AND DEVELOPED, (March 12, 2024, 8:00 PM), https://www.iiprd.com/are-memes-protected-by-copyright-law/
2. Ananyaa Banerjee and Soumya Sehgal, Memes and Copyright Protection, S. S RANA & CO, (March 12, 2024, 8:20 PM), https://ssrana.in/articles/memes-and-copyright-protection/
3. Tejaswi D. Shetty, Copyright Provisions pertaining to ‘Internet Memes’ in India, NLIU CELL FOR STUDIES IN INTELLECTUAL PROPERTY RIGHTS, (March 13, 2024, 6:00 PM), https://csipr.nliu.ac.in/copyright/copyright-provisions-pertaining-to-internet-memes-in-india/
4. VAKIL SEARCH, https://vakilsearch.com/blog/does-copyright-law-protect-memes/, (March 13, 2024, 7:15 PM)
5. William Fisher, Theories of Intellectual Property Rights, NELTP (Cambridge University Press, 2001), 3-6, (2001).
6. Vidhatri Bharti, Fair Dealing in Copyright Law: An Analysis vis-à-vis Memes, RFMLR (RGNUL Financial and Mercantile Law Review), 4-10, (March 14, 2024, 7:45 PM)
7. Third Edition, V. K Ahuja, Law relating to Intellectual Property Rights, [20,26,159], LexisNexis Butterworths, 2017.

Author:

*Ms. Aditi Pandey and **Ms. Jyothi Natarajan
3rd Year BBA LLB Student,
Alliance School of Law, Alliance University, Bengaluru

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.

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