CAN MEMES BE COPYRIGHTED?
The most popular understanding of memes would be pictures superimposed with text with a humorous undertone, shared endlessly over the internet. It could be just about anything that is voluntarily shared including one-liners, images, audio or video files, etc.
Existing memes undergo modifications, sometimes minor, and sometimes so radical that the new versions represent an entirely different idea. Often, the creator of the original image or drawing over which text is superimposed is not the creator of the meme. A third person takes this original content and modifies it, subsequently making it a meme. From this point on, future authors build on previous works and create numerous varied strands of memes, all ultimately derived from the original meme.
ARE MEMES INFRINGING COPYRIGHTS?
In identifying a copyrightable work, it is important to delineate the category under which the work in question falls. ‘Artistic work’ is defined in Article 2 of the Berne Convention and Section 2(c) of the Indian Copyright Act, 1957, and includes in its ambit paintings, drawings, diagrams, engravings, photographs, etc. As mentioned earlier, an internet meme uses an existing image and modifies it by adding a humorous message to it. The original image that is used as the background for the meme clearly falls under the ambit of ‘artistic works’, as defined in the Act, be it pictures, like that of Sean Bean as Ned Stark from ‘Game of Thrones’ in the ‘Brace Yourself’ meme
A meme would fall under the ambit of 'artistic works' which is defined under the provision of section 2 (c) of the Copyright Act, 1957 which states that an artistic works include paintings, sculptures, drawings (including diagrams, maps, charts or plans), engravings, photographs, works of architecture and works of artistic craftsmanship. As mentioned earlier, an image/photograph in a meme is mostly copyrighted, thus sharing without an authorization will constitute an infringement. Any kind of reproduction by way of distribution and sharing of the meme, which has copyright wholly or partly, would come under the ambit of being an 'infringing copy' as stated in section 2 (m) (i) of the Copyright Act.
In order to successfully gain the fair use defense in India, a creator has to fulfill two conditions: (i) the intention to compete with the copyright holder must not be there; and (ii) improper usage of the original photograph/image/video, etc. must not be done.
If a subsequent work is similar to the copyrighted work, but it can be established that the latter is not copied or reproduced from the former, it will not be considered an infringement. It is to be borne in mind that reproduction in the context of copyright means “an exact or substantial reproduction of the original matter, physically using that original matter as a model as distinguished from an independent production of the same thing, or producing it from ideas stored in the mind, if those ideas were borrowed from the alleged infringed work.” only those memes that are created for the purpose of fair dealing may be included in the ambit of the Fair Use clause of the Copyright Act.
DOCTRINE OF FAIR USE
Since memes are for the most part infringing upon copyright of the original works, it would be fair to say that any use of memes would entail a license fee, or a penalty in case of unlicensed use. However, it may be contended that internet memes can be used freely as long as they meet the requirements of the doctrine of fair use. Memes can be broadly divided into four categories, namely, cinematographic stills, rage comic memes, personal photographs and original works. Even though memes are inherently infringing in nature, the manner in which this infringement occurs varies from category to category. Some of these categories are protected under the fair use doctrine, while the others do not meet the prerequisites
In the case of cinematographic stills, one part of the entire end product is taken out of context and used merely on face value. The still is then superimposed with text of a particular nature to convey a distinctive idea. For instance, the “Brace Yourself” meme, picturing Ned Stark from ‘Game of Thrones’ holding a sword along with the words “Brace Yourself” on the upper portion of the meme. The lower part has a line that usually conveys the expected, usually exaggerated, event. In the Indian context, the Alok Nath, “Sanskari” meme, used as a still from a video of the Indian actor Alok Nath, made to add emphasis satirically on the ‘culture’ of India.
Rage comics or rage faces are a series of web-comics usually created using a simple drawing software like the popular MS Paint. The comics depict stories of human experiences and end with a satirical punch line. The rage comic memes are used to depict a large variety of human emotions and each emotion has led to the creation of a specific meme. For Example, the “Forever Alone Guy” is a drawing of an ugly face that has tears running down its ugly cheeks, superimposed with text that is used to express loneliness and disappointment with life.
The third category is the genre of photographs of people that made memes in an image macro series. The pictures depict one emotion and are superimposed with text that may vary, but the essence of the meme remains similar. For example, in the “Bad Luck Brian” meme, there is the high-school yearbook picture of a teenage boy wearing a plaid sweater vest and braces, with texts that depict embarrassing situations. “Good Guy Greg” meme has a photograph of a person smiling at the camera with a marijuana cigarette in his mouth. The text in this meme shows attributes of uncommon generosity and kindness. A subcategory in this genre is that of photographs of pet animals. The internet is flooded with cute looking animals and there is a special emphasis on cats.
The last category of memes is memes that were created with the sole intent of being a meme. The nature of such a meme can best be described with an illustration. The “Nyan cat” meme falls under this category. It is an 8-bit animation depicting a cat with the body of a cherry pop tart flying through outer space while leaving a trail of the rainbow color. It is difficult to use such memes in any other context apart from that envisioned by the creator. Further it is difficult to change the nature of such a meme to have a truly transformative work. Thus, the creator of such a meme is in a more authoritative position regarding his right.
The most important piece of law to meme-creators is the Fair Use. Part of the Copyright Act, the fair use doctrine codifies into law the idea that you can, in fact, take someone’s original work without permission, and lays out four factors to determine when doing so is acceptable. Some of the factors that courts weigh when determining if appropriation of a prior work without permission is acceptable.
1. Purpose and character of the derivative work
2. Nature of the original copyrighted work
3. Amount and substantiality of original work used in the derivative work
4. Effect on the market
§107 of the US Copyright Act enumerates those acts which shall be constituted as not infringing copyright. This provision, unlike its Indian counterpart, is inclusive in nature. Apart from detailing the exceptions, the provision also specifies a four-factor test to be used as a yardstick while considering the defense of fair use as laid down in Campbell v. Accuff-Rose Music or when Getty Images ordered Get Digital, a small blog, to pay $868 for copyright violation, for publishing the ‘Socially Awkward Penguin’ meme.
In The Chancellor Masters and Scholars of The University of Oxford v. Narendra Publishing House and Ors, the Delhi High Court noted that that the "doctrine of merger" being involved in this case, where the idea and expression are intrinsically connected, and that the expression is indistinguishable from the idea, copyright protection cannot be granted. Further, The Court opined that as far as the sequencing and schematic arrangement of the questions notice of Oxford' admission as to the same being in conformity of the J and K norms was taken notice of and that Oxford had to depict original effort, unique to their schematic arrangement or sequencing. The Court further referring to a numerous authorities on the subject observed that the same idea might be developed in different ways. Reiterating the test for determining infringement: "One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original", the Court, also looked at the "transformative work" doctrine developed in the United States, which held that: "Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises."
Therefore, we can say that the use of memes could be considered a gross infringement of copyright of several thousand authors, but, the use of the Doctrine of Fair Use requires a case to case analysis of facts and no blanket protection can be granted.