Keep Calm and Meme On: Can memes result in copyright infringement? – by Abha Dixit 1

Urban dictionary defines memes as ‘a pervasive thought or thought pattern that replicates itself via cultural means’, but today memes have become somewhat of a lifestyle for millennial. Memes seem to emerge and blow up into a sensation within a matter of hours and find humor in the unlikeliest of things – from Game of Throne stills to AlokNath to a golden retriever pretending to be a white male. In this overcrowded Internet of memes, where do rights of creator of the meme or the image lie? There are, primarily, two aspects of navigation regarding copyright infringement caused by memes:

Copyright law approach

A meme could come under the scope of ‘artistic works’ as defined under Section 2 (c) of the Copyright Act, 1957, including painting, sculptures, drawings,

whether or not possessing artistic quality, or any other work of artistic craftsmanship. If the image used in the meme is copyrighted and is used without consent of the owner of the image, it may result creating a cause of action for infringement. However, there is also skill and labour dispensed by the creator of the meme in form of the accompanying text and in consideration to that, the image constitutes only a part of the meme and not the whole of it. As registration is not a pre-requisite to file a suit for infringement, the former view seems more legally sound.

Here, the question arises whether the exception of ‘fair use’ becomes an applicable exception for liability arising for copyright infringement. But memes, being parodies or satires of alien content, might fall outside the ambit of this protection. Indian copyright law, in Section 52(1)(a) is not explicit about satirical content and parodies of original protected content or material of others. Though it could be argued that memes are usually only shared for entertainment and not for commercial gain, the intent and message of the meme must also be considered. A meme that is defamatory or malicious will escape liability under the fair use principle. For example, a Snapchat video of Indian comedy group ‘All India Bakchod’ (AIB)’s TanmayBhat mimicking Sachin Tendulkar and LataMangeshkar sparked a national outrage. In November 2017, a meme posted by the same group on Twitter, humoring NarendraModi on his frequent foreign visits resulted in filing of suits against them for defamation and obscenity.

Trademark law approach

Most memes are creations of the Internet and generally not registered as trademarks. However, considering how meme-following has taken social media by storm, the hidden commercial scope of these seemingly harmless images is becoming obvious. After Ultra Pro International LLC trademarked use of the word “doge” and the image of a surprised-looking ShibaInu, trademarking viral memes has become nothing less of an investment. In 2013, Warner Brothers was sued for infringement of copyright by creators of two of internet’s most famous cat memes, the Nyan Cat and the Keyboard Cat and soon after, Apple was sued for profiting of YouTube star, Sweet Brown.
The application of Section 29 of the Trade Marks Act, 1999 to extend liability for infringement of trademark by visual representation of registered trademarks is limited by Section 27 of the same Act, that only provides rights for ‘passing off’ of goods and services.

Other probable issues:

Even if you do manage to develop a meme, copyright it and continue to maintain its viral status, tracking down violators of your rights over itwill definitely prove difficult. Moreover, if the violation has taken place in a foreign country, further complications including that of jurisdiction, remedies, procedure etc. may arise.
Additionally, ambiguous law regarding parodies and memes in India will pose a threat. The law still lags behind the fast moving culture of entertainment and with coupled with risks of defamation and copyright infringement, it is best to be careful before sharing your memes.

References

1. II Year, Hidayatullah National Law University, B.A. LL.B. (Hons.)

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