The word "meme", coined by the English evolutionary biologist, Richard Dawkins, in his pathbreaking book "The Selfish Gene', was derived from the Greek word "mimema" meaning 'imitation' in the year 1976. Drawing a parallel between memes and biological genes, Dawkins was of the view that like genes that resonate with evolution of living beings, memes indicate and contribute towards the evolution of cultures. Generally speaking, memes are bite-sized funny (or at least they aim to be), culturally relevant and emotion provoking pieces of information, shared over and over again, sometimes to the point where the meme itself transcends the popularity of the underlying work contained therein. Most social media sites such as Facebook and Instagram are interspersed with memes created on the basis of stills/videos/images of movie scenes, sitcoms, images of people, animals, amusing natural phenomena, etc. (Third Party IP). More often than not, these underlying works fall within the ambit of copyright protection. Thus, as most memes, naturally barring any original memes, are inherently derivative in nature, they would, prima facie, involve violation of copyright laws. The jurisprudence and the literature with respect to this subject is constantly growing and evolving, with the introduction of new tests and exceptions to copyright infringement and even encompassing more possibilities with respect to protection against unauthorised use of copyrighted works. With the help of umpteen case laws, the author has attempted to understand the current legal position of India and USA vis-à-vis memes, particularly those that are created using Third Party IP (Meme/s).
Memes and the Indian copyright laws
As per Section 2(c) of the Copyright Act, 1957 (Act) 'Artistic work', within its ambit, includes but is not limited to, paintings, drawings, diagrams, engravings, photographs and so on. In case of Memes, the work that forms the basis of the Meme, is often, capable of being classified as an 'artistic work', as defined in the Act. While a Meme, when viewed technically, is a clear case of infringement, as someone else's original work is used without their consent, the defence of fair use is almost always invoked when a Meme creator is accused of infringement. Though there hasn't been any reported case of copyright infringement on account a Meme (possibly because Memes usually help greatly in increasing the popularity of the original work itself and often have little to no direct economic value themselves), there have been instances when owners of the original works have gone/ do go after the Meme-creators independently. One noteworthy example is when Getty Images had called upon the blog "Get Digital" to cease the use of the iconic meme "Socially Awkward Penguin" based on the original image by photographer George F. Mobley, owned by the former, and made the blog compensate them for the unauthorised use thereof, for over three years. 1
There are certain acts that are exempted from copyright infringement. Section 52 of the Act enlists these 'fair-use' exceptions to the exclusive rights a copyright holder is entitled to. The exhaustive language of the provision makes it amply clear that any act not listed therein would not constitute fair use, therefore raising the question if Memes fall under any of these categories. What is interesting to note that in most countries, including India, when determining fair use, courts have heavily relied on the intention of the creator to commercially exploit the offending works and the actual quantum of commercial gain afforded by the said works, while Section 52 of the Act does not touch upon this commercial aspect at all. This goes to show the attitude of the courts towards a particular matter is as important as the letter of law and plays an integral part in shaping the jurisprudence with respect to the subject.
Memes and the US copyright laws
The US legal jurisprudence throws some light on the fair use of Memes. Section 107 of the U.S. Copyright Act, enlists such acts which would not amount to infringement of copyright. This provision is far more inclusive than its Indian counterpart. Apart from detailing the exceptions, the provision also
1 Michael Archambault, Getty Images Forces Blog to Pay $868 Fee for Using 'Socially Awkward Penguin' Petapixel https://petapixel.com/2015/09/05/getty-images-forces-blog-to-pay-868-fee-for-using-socially-awkward-penguin/(last visited Sept. 22, 2022).
specifies a four-factor test to be used as a yardstick while considering the defence of fair use2. The four-factors are:
- Purpose and character of the use, including whether the use is of a commercial nature or for non-profit educational purposes:
Courts look at how the party claiming fair use is using the copyrighted work. For example, a lot of the times, non-profit educational, non-commercial and "transformative" uses are found to be fair. Transformative, as the word suggests, refers to a situation when the work created, though based on an original work, is so significantly different from the original work, that it 'transforms' the original work, giving it a new meaning. The 'Transformative Work3' test is often applied to determine whether the offending work qualifies for the fair use defence.
For illustration, in the case of Authors Guild Inc. et al. v. Google, Inc.4, the courts held that though Google had in fact scanned and copied contents of close to 30 million books, the purpose (Google did not simply intend to resell the books but actually create a search engine of sorts, for books that have been out of print for a while, to help libraries preserve books and even help differently abled people to access traditional books that they would not have been able read otherwise) for such copying was transformative enough in nature, for the copying of the original works to be held, fair. Similarly, in India, the principal of transformative use was also highlighted in the case of the R.G Anand v. M/s. Delux Films & Ors.5 wherein the Indian Supreme Court had held "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."
Furthermore, parodies are often considered to be "transformative use". Derived from the words "para" meaning to draw a parallel, or by logical extension, to mock and "ode" meaning a song/poem. Parodies, by way of humor, attempt to criticise or ridicule or point out the shortcomings of the existing work. Therefore, a parody, by its inherent character, requires the viewer to identify and establish a connection with the existing original work. Section 52 of the Act, provides that the act of criticising/reviewing an existing work does not constitute infringement of copyright subsisting in the said existing work. However, despite prima facie, falling under the ambit of Section 52 of the Act, all parodies are not treated equally. While determining whether a particular parody constitutes infringement or not, the court usually analyse the intention of the creator and the public perception of the said parody. In the case of Civic Chandran and Ors. v. C. Ammini Amma and Ors.,6, while specifically adjudicating the legality of parodies, the Kerala High Court held that as long as the impugned parody copies from the original work to solely criticise/review it, the same would constitute fair use of the original work. To arrive at this conclusion, the court relied on the 3 condition "Substantiality Test"- i) the quantum and value of the matter taken in relation to the comments or criticism; ii) the purpose for which it is taken, and iii) the likelihood of competition between the two works.7
While there isn't any real case to rely upon, the author here has attempted to analyse one of the most iconic Memes, the "Bad Luck Brian" meme in the context of "transformative use". Even though the Meme itself utilises the original work i.e. the yearbook photograph of one Mr. Kyle Craven, in its entirety, the superimposed text on the image totally alters the context/purpose for which it is and has been used by the public at large, from the intended purpose of the original work (the photograph was clicked for a school's yearbook). Without the text, the Meme would be nothing but an out-of-context year-book image. In furtherance to the same, it is remarkable to note that trademark registration has been granted to the word mark "Bad Luck Brian" in relation to certain goods and services, underscoring the fact that the aforesaid 'superimposed text', by itself, is capable of protection. This author, therefore, argues that: (i) since the actual value addition happens only with the addition of the superimposed text,
2 17 U.S.C. 107 – Limitations on exclusive rights: Fair use, https://www.govinfo.gov/app/details/USCODE-2010-title17/USCODE-2010-title17-chap1-sec107/context , (last visited Oct. 13, 2022)
3 Campbell v. Acuff Rose Music Inc., 510 U.S. 569 (1994)
4 Authors Guild v. Google, Inc., No. 13-4829 (2d Cir. 2015)
5 R.G. Anand v. M/s. Delux Films & Ors. 1978 AIR 1613; 1979 SCR (1) 218; 1978 SCC (4) 118
6 Civic Chandran and Ors. v C. Ammini Amma and Ors., Manu/KE/0675/1996
7 Supra note 6
despite the entire image being copied, for the purpose of humour, which alters the 'nature' of use of the original work, such different intended usage of the Meme could possibly be considered as transformative use; and (ii) as per the RG Anand case, though the "theme", (i.e., the image in this case) of the original photograph and the Meme are the same, the way both are presented/treated is poles apart. Thus, in this author's opinion, this particular Meme could qualify as transformative in nature, and therefore, fall under the ambit of fair use.
- The creative nature of the copyrighted work:
This factor analyses the nature of the work that has been utilised without authorization, and whether such work is published or unpublished. The usage of a creative work like a song or a fictional novel is likely to not qualify as fair use of such creative work, as against the usage of factual work like a news report. Upholding this view, the Supreme Court in the case of Sony Corp. of America v. Universal City Studios, Inc.8 had stated that "copying a news broadcast may have a stronger claim to fair use than copying a motion picture" as basing one's work on existing informational works promotes further creation of newer scientific or educational works, which in turn, benefit the public at large. Further, understandably, the use of an unpublished work is not looked upon favourably as an author has the innate right to control the first public appearance of his/her work9.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole:
Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. However, there have been occasions where some courts have found the use of an entire work to be fair10 under certain circumstances, while at times, even a small amount of a copyrighted work was determined not to be fair, because the portion of the original work used was considered to be the essence of the said work.
That being said, in some cases, the quantum of the works copied is so miniscule, that the courts permit such usage even without analysing the merits of the case. This principal is known as 'de minimis non curat lex', which essentially means that the court does not take notice of very small matters/trivial matters as the same would-be counter-productive in nature. Relying on this very principal, in 2013, in the case of Saregama India Ltd. v. Viacom 18 Motion Pictures and Ors.,11 the Calcutta High Court construed the copyright infringement in lyrics of a Hindi song, wherein four or five words out of the said song were rendered by the actor in the defendant's film, as trivial and minimal as the same had no impact, effect or loss caused to the plaintiff.
- The effect of the use upon the potential market for, or value of, the copyrighted work:
Here, courts review whether, and to what extent, the unauthorized use harms the existing or future/potential market for the copyright owner's original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread. Memes, usually, have no adverse effect on the potential market of the original works as the intention behind their creation is often not commercial gain but recreational discourse. However, Memes that are not exploited commercially, may still acquire indirect commercial gains for their creators, thereby falling into an ambiguous, grey area. A very common phenomena today is the creation of Memes by meme-pages on various social media sites. While these Memes do not generate any income directly, once viral, garner such popularity for the page/creator itself, that the page in-turn starts attracting ad-revenue. To quantify this kind of gain, one would need to attach an exact economic value to the Meme itself. In the absence of such technology, one would have to solely rely on their base observations.
8 Sony Corp. of America v. Universal City Studios, Inc., 104 S.Ct. 774
9 Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987)
10 Supra note 9
11Saregama India Ltd. v. Viacom 18 Motion Pictures and Ors ., TA No. 29 of 2013 with T. No. 62 of 2013
Though these four factors have been accorded equal importance, their applicability varies depending on the facts and circumstances of each case. In the case of The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House12, the Delhi High Court applied the four-factor test for fair use and emphasised that the above-mentioned factors could not be isolated as per one's whims and fancies, and would have to be looked at collectively and holistically, to assess whether the doctrine of fair use is applicable. Despite the strict confines of Section 52 of the Act in India, Courts have, with a view to promote and encourage creativity, through judicial ingenuity, extended the ambit of the said section by borrowing from US jurisprudence, adopting the four-factor test, and devising their own criteria as to what would constitute fair use. Though no infringement cases by the creation and spread of Memes have reached Indian courts, it can be safely assumed that if they were to, the aforesaid four-factor test in consonance with Section 52 of the Act, would be used to analyse the fair use of such Memes.
12The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House, (2009) 39 PTC 642.
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