The first thing that comes to our mind when the word ‘memes’ is used would be - a funny image or snips from movies having funny captions or texts with a comical or satirical undertone. Social media facilitates for the easy and viral spread of these ‘internet jokes’ aka ‘memes.’
A meme in its essence is a third person using someone’s original and published work for their own purposes without the acknowledgement or permission of the original creator or copyright holder. However, this doesn’t hold true to all instances as the purpose of making a meme varies from situation to situation. For example, a meme used to advertise one’s products or services could fall under the purview of infringement but a meme used purely for comical purposes won’t fall under infringement under the Copyright Act.
There is however only a fine line between creating and sharing a meme and infringing someone’s intellectual property rights in its content. Infringement can occur when:
- 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’s copyright over the content used along with their own caption.
- When the meme is reshared as it is without giving proper credits.
Section 2 (c) of the Copyright Act, 1957 contains the definition of artistic works which include paintings, sculptures, drawings, engravings, photographs, works of architecture and works of artistic craftsmanship. Memes would fall under this category of works. A meme as established is usually an image or photograph that is copyrighted and therefore according to the provisions of law the unauthorized sharing of the same would come under the ambit of being an infringing copy as stated in section 2 (m) (i) of the Copyright Act.
The makers of memes that are derived from other original works have protection from being sued by the authors of these works under the ambit of the Fair use doctrine. Fair use doctrine is laid down under Section 54(1) of Indian Copyright Act, 1957. In order to successfully use the fair use defense in India, a creator has to fulfil two conditions:
- There must be no intent to compete with the original creator of the work and;
- improper usage of the original photograph/image/video, etc. must not be done.
The first condition laid down in this section is based on the market substitution test. According to this test the purpose of using a registered mark or work is very important in determining the extent of infringement. In the case of memes, the main intent is comical or satirical and not to compete with the original right holder and therefore this test can easily be proven in favour of the meme creator. The second test established by this provision is the test of improper use. This test has a very broad definition but since memes have the main intention of humour they don’t come under the definition of improper use. The only way they can fall under this purview is if the original author or right holder is offended by the use or way of use by the creator.
In India there haven’t been any cases yet that involve memes as infringements of intellectual property however the High Court of Kerala in its judgement of Civic Chandran v. Ammini Amma established that a parody of any original work so long as it is done in order to criticise it, does not amount to an improper use of the original and thus qualifies as fair use.
The absence of awareness and sensitization are the key elements adding to the continuation of Copyright infringement related to memes. Users need to be made more familiar with the existing provisions of laws and the standards of resharing somebody's original work with appropriate credits. Besides, purchasing copyrights for meme templates such as photos, videos, and so forth should be made easily available and easy to purchase for individual independent creators as well.
In the present convoluted online space, remedies must be taken into account especially in view of social media, for example, its quick distribution and ability to target a global audience. The law needs to clearly define what constitutes an infringement in relation to memes. There currently exists a legal lacuna that needs to be disposed to provide speedy justice to both authors of original works as well as those who use this content for the purpose of creating and sharing memes.