India: Meme vis a vis Copyright Law

Last Updated: 3 August 2015
Article by Divya Srinivasan

Have you shared or created funny anecdotes, limericks or jokes in the form of an image, video, piece of text, etc. of famous personalities, celebrities or infamous politicians on social networking sites like Facebook, Twitter or even WhatsApp? You definitely must have. These are popularly known as 'meme'.

According to the Oxford Dictionary a meme is defined as an image, video, piece of text, etc., typically humorous in nature, which is copied and spread rapidly by Internet users, often with slight variations. Further it is an element of a culture or system of behaviour passed from one individual to another by imitation or other non-genetic means.

Creators of 'meme' could be amateur, crafty professionals, or artists. Owing to the technological advancement of the global community, making these is not at all time consuming. These 'meme' are posted on the internet and always almost include photographs and images of the person, with or without their consent with a humour quotient attached to it.

Legal Meme-istification

When a meme is created it constitutes the following; image of the celebrity/person, tagline and usually mimics which could be stemming out from the words/actions of the specific individual in the meme. The question that comes up here is whether requisite license or authorisation has been obtained from the celebrity/person for using their image, whether the tagline was used from a movie/speech/song/video made or participated in by the celebrity or person and whether the mimic is a parody, defamatory or malicious statement.

A meme would come under the scope of 'artistic works' defined under section 2 (c) the Copyright Act, 1957 (hereinafter the Act), which says an artistic works include paintings, sculptures, drawings (including diagrams, maps, charts or plans), engravings, photographs, works of architecture and works of artistic craftsmanship. As stated earlier, an image/photograph in a meme is usually copyrighted and hence sharing without authorisation does constitute infringement. When infringement is talked about, a reproduction by way of distribution and sharing of the meme which has copyright wholly or partly, would come under the term of being an 'infringing copy' as given in section 2 (m)(i) of the Act.[i]

Moreover, the Copyright Law empowers the right holders with the sole right to do or authorise someone else to do a reproduction of his copyrighted work as given in section 14 (c) of the Act.[ii] For instance, if a photograph of Arnab Goswami, which a photographer owns copyright over, is being used in a meme, then Arnab and the photographer have image rights and copyright over the photograph, respectively and could also sue for alleged infringement. Usually meme are created for entertainment and fun purposes and do not target for any commercial gain. Being such in nature they escape liability for infringement and enjoy the shield of fair use doctrine enshrined under section 52(1)(a) of the Act. Fair Use is a doctrine under the copyright law, which is an exception to the exclusive right granted to a copyright owner, which permits limited use of copyrighted material for endeavours like news reporting, non-commercial intended fun, educational purposes, etc.

In order to successfully gain the fair use defence in India, a creator has to fulfil 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. This was laid down in Blackwood & Sons Ltd. v. A.N. Parasuraman (1959). The first condition, also known as the market substitution test, can be easily won as the main purpose of a meme is taking 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 strait jacket definition rather it is open for interpretation and further deliberation. Since meme are for fun purposes they hardly come under the purview of improper use unless they appear to be blatantly offensive to the right holder.

While India may not have litigation in meme-ology, in U.S., Warner Bros faced litigation after they used the famous 'Nyan Cat' and 'Keyboard Cat' in their game Scribblenauts. Another case was filed against AT&T President Aaron Slater who shared an infamous racist meme.

Conclusion

Meme have no commercial value and as stated above, usually come under the fair use defence. However it may infringe upon the right to privacy of an individual and the right to freedom of speech and expression as a defence would not work either if people/celebrities start using their publicity/privacy rights against 'mistaken' perpetrators. Copyright infringement could also come into foray for non-obtainment of consent from the individual/author to use his/her image. It is suggested that these amateur and young creators must procure necessary licenses and approvals from the right holders to prevent any legal battle or liability in future.


Endnotes

[i] "infringing copy" means,- (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film; (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means; (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means; (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;

[ii]  For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-

[c] in the case of an artistic work,- (i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work; (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work; (vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

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Divya Srinivasan
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