India: Memes: Use Of Still Photographs From The Movies Along With Dialogues – A Case Of Copyright Violation Or Not

Last Updated: 8 April 2019
Article by Vijay Pal Dalmia, Partner

By Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Partner Vaish Associates Advocates
Mobile no. +91 9810081079
Email id: vpdalmia@vaishlaw.com

As per Section 2(f) of the Copyright Act, 1957 ( "Act"), a "cinematograph film" means any work of visual recording produced through a process from which a moving image may be and includes a sound recording accompanying such visual recording and cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films. From the bare reading of this definition, it is clear that a film/ movie falls under the definition of "cinematograph film" under the Copyright Act, 1957.

As per Section 14 of the Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:--

........ d) in the case of a cinematograph film,--

(i) to make a copy of the film, including-

(A) a photograph of any image forming part thereof; or

(B) storing of it in any medium by electronic or other means;]

(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;]

(iii) to communicate the film to the public;.........

Further as per Section 51 of the Act, inter alia, Copyright in a work shall be deemed to be infringed, when any person, without a license granted by the owner of the copyright or the Registrar of Copy rights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act, does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright.

From the reading of the above provisions, it is apparent that using a photograph of any image from the film without the consent of the producer will violate his exclusive right in the work.

It may be noted that Section 52 of the Act defines certain acts which do not constitute infringement of Copyright.

Section 52 - Certain acts not to be infringement of copyright

(1) The following acts shall not constitute an infringement of copyright, namely:--

(a) a fair dealing with any work, not being a computer programme, for the purposes of-

(i) private or personal use, including research;

(ii) criticism or review, whether of that work or of any other work;

(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.

...........................

(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;

...................

(v) the use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any would, cast, sketch, plan, model or study made by him for the purpose of the work:

Provided that he does not thereby repeat or imitate the main design of the work; [***]

(y) in relation to a literary, 19[dramatic, artistic or] musical work recorded or reproduced in any cinematograph film, the exhibition of such film after the expiration of the term of copyright therein:

Provided that the provisions of sub-clause (ii) of clause (a), sub-clause (i) of clause (b) and clauses (d), (f), (g), (m), and (p) shall not apply as respects any act unless that act is accompanied by an acknowledgement-............

(zc) the importation of copies of any literary or artistic work, such as labels, company logos or promotional or explanatory material, that is purely incidental to other goods or products being imported lawfully.]

(2) The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.

In the case of Blackwood & Sons Ltd. v. A.N. Parasuraman [AIR 1959 Mad. 410./ MANU/TN/0233/1959}, even though there is no express mention of parody or satire or meme as an exception under the 'fair use' provision, it was held that in order to constitute a fair dealing, there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.

That Section 107 of the US Copyright Act (https://www.law.cornell.edu/uscode/text/17/107) enumerates those acts which shall be constituted as not infringing copyright and also provides a four-factor test to be used as a yardstick while considering the defense of fair use:

  • (1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

  • (2) The nature of the copyrighted work;

    (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

    and

    (4) The effect of the use upon the potential market for or value of the copyrighted work.

There is no similar provision under the Indian Act. These 4 factors have been explained in detail in the case tiled as "The Chancellor Masters and Scholars of The University of Oxford Vs. Narendera Publishing House and Ors." ( MANU/DE/1377/2008) (http://lobis.nic.in/ddir/dhc/SRB/judgement/29-09-2008/SRB17092008S16562005.pdf) . The Hon'ble Court in that case held that the traditional four factors employed to reach a conclusion of fair use are to be treated together, not in isolation and no undue preference can be given to any one of them and the explained the 4 factors as under:

  1. In relation to the first factor, it was held that Court must look into the nature of the use, i.e. whether it was for educational purposes or for review or criticism. The central enquiry (according to the Court) is to see if the work merely supersedes and supplants the original work or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; in other words, whether and to what extent the new work is 'transformative'. Transformative works, the Court held, have a greater chance of falling within the fair use defense and such 'works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright'. If one may put it differently, the question to be addressed would be is there a value addition, which alters the original work in a not insignificant measure.
  2. The second factor, which evaluates the nature of the copyrighted work, is intended to find out if the work actually merits copyright, that is, whether copyright law was intended, at its core, to cover such works. However, the Court cautioned that this factor is not likely 'to help much in separating the fair use sheep from the infringing goats', in cases where the subsequent work is transformative.
  3. The third factor, which deals with the extent of copying, the Court explained citing Sony (supra), does not entail that the reproduction of the entire work would militate against the finding of fair use. There could be cases where the copying could be substantial and the courts finds fair use, at the same time there could be cases where the copying though insubstantial could be held as infringement.
  4. Lastly, the court observed that the fourth factor, where the market harm to the copyrighted work had to be assessed, could not be the sole determinative factor. The Courts have to "consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market"

Accordingly, if one uses the images from the films by adding certain text and making it a new artistic work entirely for non-commercial purpose, there is a strong likelihood that such use would sail through the aforesaid test laid down by the Courts. However, it is pertinent to note that till date, there is no judgment or precedent passed by the Indian Court making any conclusive observation even on the legality of the memes used for non-commercial purpose, and further, as per the provisions of the Act, using such pictures without the permission of the Copyright holder will tantamount to infringement of copyright.

The Section 52 (1) (a) of the Act allows for 'fair dealing with any work' for the purpose of private or personal use, criticism or review etc. From the perusal of the above section, its clear that use still photographs from the movies along with dialogues, as memes doesn't per-se qualify under any of the above exceptions, as the purpose of such meme is neither private/ personal nor you are reviewing or criticizing such work. Accordingly, there is a possibility of copyright infringement even if still photographs from the movies along with dialogues are used as memes, on social media pages for promoting social messages.

© 2018, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

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