India: Memes And Copyright: Fair Use Or Infringement?

In the year 1976, Richard Dawkins, an evolutionary biologist devised, the term 'meme' in his book "The Selfish Gene". In this book, Dawkins defines the meme as a unit of cultural meaning, such as a value or an idea, which is passed from one generation to another. Dawkins further illustrated that the meme is the cultural counterpart to the unit of physical heredity.

In recent times, the most popular understanding of memes would be illustrations, photos or movie excerpts which are superimposed with text with a humorous undertone, hence placed in a completely new funny context. These internet jokes (memes) spread like wildfire in the internet community, hence making the memes viral. The main issue here is whether these light-hearted memes which are mostly ironic and critical; functioning as a parody for the main content is infringing copyrights of the original artist?

A meme would fall under the ambit of 'artistic works' which is defined under the provision of section 2 (c) of the Copyright Act, 1957 which states that an artistic works include paintings, sculptures, drawings (including diagrams, maps, charts or plans), engravings, photographs, works of architecture and works of artistic craftsmanship. As mentioned earlier, an image/photograph in a meme is mostly copyrighted, thus sharing without an authorization will constitute an infringement. Any kind of reproduction by way of distribution and sharing of the meme, which has copyright wholly or partly, would come under the ambit of being an 'infringing copy' as stated in section 2 (m) (i) of the Copyright Act.

In order to successfully gain the fair use defense in India, a creator has to fulfill 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. 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 is for fun purposes, they hardly come under the purview of improper use unless they appear to be blatantly offensive to the right holder.

The 'fair use" doctrine is a legitimate defense 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 are determinative. The first factor is the purpose and the character of the use, second factor talks about the nature of the copyrighted work. The third factor talks about the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The last factor talks about the effect of the use upon the potential market in regard to the copyrighted work1.

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 favor fair use. If the meme includes a short clip from a longer movie, then the amount and substantiality of the use factor will favor fair use; however, this may not be the same case when the meme consists of a single photograph/image.

Till date, India has not witnessed any meme-ology litigation. But in the USA, Warner Bros faced litigation under copyright infringement after they used the famous 'Nyan Cat' and 'Keyboard Cat' in their game Scribblenauts2 and had to pay heavy compensation to the plaintiffs Charles Schmidt and Christopher Orlando Torres. AT&T President Aaron Slater faced $100 million racial discrimination litigation after he shared an infamous racist meme3

As it is stated above, memes have no commercial value and they usually fall under the ambit of fair use defense. But this defense won't work, when there is infringement in regard to right to privacy of an individual. The defense of right to speech and expression will not work when people/celebrities start using their publicity/privacy rights against 'mistaken' perpetrators. Copyright infringement comes into picture where there is non-obtainment of consent from the author/individual before using his/her image. Therefore, young and amateur creators must procure necessary licenses and approvals from the copyright holders to prevent any liability in the future.



2 Charles Schmidt & Christopher Orlando Torres v. Warner Bros Entertainment CV 13-02824


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