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  • Writer's pictureDivanshi Gupta

Laugh Out Loud, Legally: Copyright Considerations in Memes


INTRODUCTION


Memes have become a very common part of social media culture and a visual language for young consumers. The high engagement rate is evident from YPulse's social media behaviour survey, which shows that 75% of 13 to 36-year-olds and 79% of 13 to 17-year-olds share memes.[1] The term ‘meme’ was first coined by Richard Dawkins, alongside his book The Selfish Gene. He defined a meme as “an idea, behaviour, or style that spreads from person to person within a culture.”[2] But the concept of internet memes that has emerged is very different from Dawkins’ original conception. Internet memes are identifiable as online artefacts made up of different kinds (and degrees) of innovative riffs. In other words, a ‘meme’ is an image, GIF, or video that has been altered with text or the overlay of other images for the purpose of sharing humour.


Digital media and the Internet have facilitated the creation, dissemination, and consumption of memes. This practice facilitates, on the one hand, the expression of originality and creativity, and, on the other, a sense of belonging to a cultural collective.[3] The memetic content has a wide bandwidth that varies from pop culture to political critique. Meme makers have managed to turn almost everything into a meme, from Novak Djokovic’s epic ‘Spider Man’ avatar at Wimbledon to Dr. Shaun Murphy’s dialogue ’I am a surgeon!’ from the series The Good Doctor. Memes are not just limited to hilarious incidents anymore, they have turned into means of expressing people’s opinions. Every news piece, award function and fashion outing is fodder for meme-makers.


MEMES USED FOR COMMERCIAL PURPOSES


The rise of the internet has quickly spawned a cultural practice of creating and sharing internet memes. In the modern business world, memes are an essential component of marketing strategy. The old-school style of satire has become the new-age catalyst in marketing. Considering they are eye-catching, easy, affordable, and trendy, memes are ingenious layouts to attract consumers. Therefore, implementing meme marketing into a social media strategy can help the brand achieve upper-funnel marketing goals, such as brand awareness and deepen customer engagement. Therefore, memes are turning out to be an effective promotional and branding tool.


Companies use memes as their marketing techniques and tend to connect their field of business with popular memes. For instance, KFC capitalised on the viral "Bird Box" meme trend when the movie was released on Netflix as a part of their marketing strategy to promote their business. Clearly, a lot of business houses participate in the trend and indirectly promote their brand without consumers even realising that they are looking at advertisements.




COPYRIGHT CONCERNS

Memes are becoming a genre of communication covered by free speech norms. As a part of remix culture, memes are employed by transforming an existing culture to convey a message to internet users. This transformative and imitative nature may cause problems for the creator. It is even more problematic when the creator is a company and creates those memes for branding. Even though they may not be directly earning money from those memes, their indirect commercial purposes may undermine their fair use factors. For instance, in the case of Little Things Inc. v. Ludacris[5], a copyright infringement suit was filed by Little Things Inc. against the rapper and actor ‘Ludacris’ for re-posting the meme on his Instagram account, to promote his new single "Vitamin D”. This is a quintessential case of copyright infringement where a meme has been re-posted for promotional purposes. However, later, the case was settled outside of the Court.


The jurisprudence on the interplay of memes and copyright has recently gained pace and is still under scrutiny. In the case of Grumpy Cat Ltd. v. Grenade Beverage LLC.[6], a California federal jury awarded $701,000 in favour of the Plaintiff for copyright and trademark infringement, along with a $1 nominal damage fee for breach of contract. The case concerned a viral Internet meme ‘Grumpy Cat’. The Plaintiff acquired the intellectual property rights over Grumpy Cat, including a registered trademark and four registered copyrights. In 2013, the Plaintiff entered into a licence agreement with the U.S. Coffee Company 'Grenade’ to use Grumpy Cat's copyrighted and trademarked name and image. Later in 2015, the Defendant, upon acting beyond the terms of the agreement, was sued by the Plaintiff. It is one of the first cases involving IP rights emerging out of a meme.


COPYRIGHT PROTECTION IN INDIA


The viral fever of memes is trending world-wide and India is no exception to this viral fever of memes. There are designated meme accounts and pages on social media websites, and the creation of memes has become a full-time job. The creators of memes require a high level of open mindedness, research and analytical skills, and above all, creativity. Like most artistic creations, copyright can arise automatically in a newly-created meme, provided the meme is the author’s own intellectual creation. Since copyright subsists over original creative works, the standard of creativity is fairly low. The creation of memes comes under the ambit of artistic works defined under Section 2(c) of the Copyright Act, 1957 (hereinafter the ‘Act’) which provides that artistic works include paintings, sculptures, drawings (including diagrams, maps, charts or plans), engravings, photographs, works of architecture and works of artistic craftsmanship. An image or a photograph in a meme is mostly copyrighted, thus sharing it without authorization constitutes an infringement. Any reproduction by way of distribution or sharing of the meme, which has a copyright whether wholly or partly, would come under the ambit of being an 'infringing copy' as stated in Section 2(m)(i) of the Act. However, alongside copyright, exists the doctrine of fair use. The inclusion of the doctrine of ‘fair dealing' in Section 52 of the Act has opened the door to creative manifestations such as parodies, remixes, merchandising of characters, etc.


INTERPLAY OF THE DOCTRINE OF FAIR USE AND MEME CULTURE


The re-posting and sharing of memes is at the heart of fair use. However, the fair nature of the dealings depends on four factors: the purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work; and lastly, the effect of use on the potential market. The purpose and character is determined by the degree of transformation between the original and derivative work. Further, whether the transformed work adds new meaning to the pre-existing work. Another factor to be determined is whether the meme creator has borrowed dialogue, iconic expression, and a single frame or the artistic work entirely. For instance, in 2015, the visual media company ‘Getty Images’ threatened to file a lawsuit against a German blog for publishing the famous ‘Socially Awkward Penguin’ meme without obtaining prior permission. Getty Images claimed to be the copyright holder of the photograph of the penguin, and the blog ended up paying $868 for the copyright violation.[7]




Lastly, it is pertinent to ascertain whether a meme has been made for recreational or commercial purposes. In the case of Christopher Orlando Torres and Charles L Schmidt v. 5th Cell Media LLC and Warner Bros Entertainment Inc,[8] a copyright and trademark infringement case was filed against Warner Bros. and 5th Cell Media, for infringing the rights of the Plaintiffs in the memes ‘Keyboard Cat’ and ‘Nyan Cat’ and using the same for ‘commercial profit without consent’. It was the case of the Plaintiffs that the Defendants were knowingly and intentionally infringing their copyright by using the images of the cats in WB’s top selling ‘Scribblenauts’ games. The case was settled out of the Court, with the Plaintiff being fairly compensated for their creative work and Warner Bros. licensing the two cat memes for use in the games.




CONCLUSION

In the realm of memes, copyright can be a tricky pickle to navigate. It's like trying to fit a square meme into a round copyright law. But fear not, in the world of humour, creativity finds a way! Memes, with their quirky captions and hilarious adaptations, often dance on the fine line between fair use and copyright infringement. Accordingly, in the wild world of memes, business houses must navigate the treacherous waters of copyright. Using memes without proper authorisation can lead to copyright infringement, making it crucial for businesses to be cautious when incorporating memes into their marketing and content strategies. Further, memes incorporated should demonstrate a minimum level of originality and creativity to respect the rights of original creators and to avoid being the focal point of a legal jest.



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