INTRODUCTION
The term meme originated in 1976 from the book “the selfish gene”[1], written by Richard Dawkins. In this book, the meme is defined as a unit of cultural meaning.
Memes are all about pictures shared with some humorous text. It could be just about anything that is voluntarily shared including one-liners, images, audio or video files, etc. memers do some modification and turn existing memes into a whole different version. This is not necessary that the original creator of the image creates memes too. A third person or memer takes the image and turns it into a new meme. The Creator of a meme could be anyone, a crafty professional, or an artist. Meme-making is not time-consuming.
In India, memes shape ideas and influence people’s opinions. Memes are tools for expressing one’s ideas today we can’t assume social media without memes. Some images that became very popular in India recently like, Amrita Rao’s jal lijiye meme and Ronaldo praising water over coke.
MEMES AND COPYRIGHT
Memes come under section 2 (c) of the Indian copyright act 1957[2], as memes use an existing picture and change it by adding humour to it. The original images that use to make memes fall under “artistic work” under section 2(m) of the Indian Copyright Act 1957[3]. Be it like images of Amrita Rao from jal lijiye memes, or stills from Friends show.
Section 13[4] provides that copyright shall subsist original literary, dramatic, musical, and artistic works; However, the precise requirements of originality are not provided for in the statute, although a universally acknowledged premise is that for copyright, it is the originality of expression that matters and not that of the idea.
Section 14[5] of the copyright act defines the meaning of copyright “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.
- In the case of a literary, dramatic, or musical work, not being a computer program
- To reproduce the work in any material form including the storing of it in any medium by electronic for instance if a person who does not have any authority reproduce the work of the owner without his consent or does not have the license of the copyright owner is said to be a violation of copyright act. But if the work is slightly similar to the copyrighted work but it can be proved that the work is not copied it will not be considered a violation of the copyright act.
In the case Hindustan Pencil Pvt. Ltd. v. Universal Trading Company[6], it was held that even if the copied work has some changes but the important feature of the artistic work is there, then the person is liable for copyright infringement.
DOCTRINE OF FAIR USE TO THE RESCUE?
Section 107[7] provides a set of rules that should be followed to decide whether it is in the ambit of fair use or not. Fair use promotes freedom of expression by permitting the use of copyrighted work.
There are four (4) factors given u/s 107 to be considered under fair use.
- Purpose of the use:
Courts majorly find a non-profit or non-commercial use fair but that doesn’t mean that commercial use is not fair. Court says “transformative” uses are more likely to be considered fair. Transformative work means when meme creator adds something new like any subtitle or text.
- Nature of the copyrighted work:
This facto reviews the degree to which extent work that was used relates to copyright’s purpose of encouraging creative expression, using a more creative work is less likely to be fell under fair use.
- How much amount used concerning copyrighted work:
The court looks that how much quantity of original has been if work has more amount to original work, fair use is less likely to be found; and if the work has a small amount of original work, fair use is more likely to be found. The Court has found a small amount of work not fair use because the selection was an important part of the original work.
- Effects of unlicensed use on the original work (copyrighted work):
The court analyzed whether an unlicensed use of original work injures the copyright owner’s existing work or any future work. The whole result of the case depends on the facts of the case.
If someone is using someone else’s work without any permission of the owner in most circumstances it would be a case of infringement. But in the case of memes, this cannot be entirely accurate because the purpose of making memes varies and only those memes which are created for fair use can be included in the doctrine of fair use.
Section 54[8] of the Act defines “fair dealing with any work”, it does give the right to steal someone else’s work. It just said the rules for the third party to use copyright work “fairly”. The case Civic Chandran v. Ammini Amma[9] held that parody or satire cannot be count as illegitimate if they are copied and thus they can qualify for “fair dealing with the work”.
CONCLUSION
Copyright infringement shows up when there is no consent obtained from the owner before using their images. As memes have no commercial value so they usually fall under fair use but this doesn’t mean they can use any pictures without consent but this defense varies from case to case. Young meme creators should be aware that meme-making for fun is good but when they do it for commercial purposes they should take consent from the copyrighted owner.
Author’s Name: Shweta Gautam (Dr. Ram Manohar Lohiya National Law University, Lucknow)
[1] Encyclopedia Britannica, 2021, meme | Definition, Meaning, History, & Facts. <https://www.britannica.com/topic/meme> accessed on 21 July 2021
[2] Copyright Act 1957, s 2(c)
[3] Copyright Act 1957, s 2(m)
[4] Copyright Act 1957, s 13
[5] Copyright Act 1957, s 14
[6] Hindustan Pencil Pvt. Ltd. v Universal Trading Company [2000]
[7] Copyright Act 1976, s 107
[8] Copyright Act 1957, s 54
[9] Civic Chandran v Ammini Amma [1996] PTR 142
