Are memes a violation of copyright?

A meme could be an image, video, piece of text, etc., typically humorous in nature, that is copied and spread rapidly by internet users, often with slight variations. Any kind of reproduction of the image or video used for the purpose of meme, which has copyright wholly or partly, would come under the ambit of being an 'infringing copy' as per the provisions of section 2 (m) (i) of the Copyright Act.

What are memes?

Merriam-Webster dictionary defines a meme as, "an idea, behaviour, style, or usage that spreads from person to person within a culture and an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media."

Without memes, it is not possible to imagine social media, as it is a source of fun for its audience and users. In India, meme holds immense power in shaping ideas and influencing opinions of the general public, especially when it comes to political communications.

Memes easily become a trend and it is an all-way to cater for the issue and spread it out humorously. Social media and meme go hand-in-hand where memes can be considered as a fuel which social media runs on.

However, many are not aware that the memes can give rise to copyrights issues.

What are the legal provisions memes infringing copyright laws?

The meme would fall under the ambit of 'artistic works' and defined under the provision of section 2 (c) of the Copyright Act, 1957 which states that an artist work includes paintings, sculptures, drawings (including diagrams, maps, charts or plans), engravings, photographs, works of architecture and works of artistic craftsmanship. An image/photograph in a meme is mostly copyrighted, and thus sharing without authorization will constitute an infringement as per section 2(m)(i) of the Copyright Act.

While ensuring the fair use defence in India, a creator has to fulfil two conditions:

• the intention to compete with the copyright holder must not be there; and

• Improper usage of the original photograph/image/video, etc. must not be done.

The main purpose of a meme is to take a sardonic or comical take on something involving someone and does not seek to compete with the right holder.

The second condition involves the term 'improper use', which is a very broad term and cannot be defined in a straitjacket definition rather it is open for interpretation and further deliberation. Since meme is for fun purposes, they hardly come under the purview of improper use unless they appear to be blatantly offensive to the right holder.

What is the concept of 'fair use' in memes?

The 'fair use" doctrine is a legitimate defence in cases of copyright infringement. The Copyright Act enlists four different factors to determine the use of copyright work is fair or not, but none of these factors is determinative. The first factor is the purpose and the character of the use, the second factor talks about the nature of the copyrighted work. The third factor talks about the amount and substantiality of the portion used about the copyrighted work as a whole. The last factor talks about the effect of the use upon the potential market regarding the copyrighted work.

The memes which weigh against fair use, for example, a meme that an enterprise creates and distributes for sales and marketing purposes has a commercial element. These memes are different to the Internet memes created by fans, individuals, etc. If the nature of the copyrighted work is more factual and contemporary (for example, a picture of a historical figure), rather than something more creative (for example, a clip from a motion picture), this will favour fair use. If the meme includes a short clip from a longer movie, then the amount and substantiality of the use factor will favour fair use; however, this may not be the same case when the meme consists of a single photograph/image.

Can you refer to some cases of copyright infringement by memes?

To date, India has not witnessed any litigation regarding infringement of copyright by memes. However, in the USA, Warner Bros faced litigation under copyright infringement after they used the famous 'Nyan Cat' and 'Keyboard Cat' in their game Scribblenauts and had to pay heavy compensation to the plaintiffs Charles Schmidt and Christopher Orlando Torres.

Also, AT&T President Aaron Slater faced $100 million racial discrimination litigation after he shared an infamous meme influencing racism.