Memes became an integral part of social media
Merriam-Webster dictionary defines a meme as, ”an idea, behaviour, style, or usage that spreads from person to person within a culture and an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media.”
The trend of memes became so popular that without memes it is difficult to imagine any of the social media. The sole attempt of the memes is to entertain the viewers and conveys the ideas and opinions of the general public. Not only for entertainment purpose, but the memes have also contributed to marketing purposes – the companies now create memes to post on their social media, and the posts with funny and good content raise their visibility, which serves the purpose of marketing.
Memes and social media go hand-in-hand, as this is a humorous way to convey any opinion, even serious opinions regarding politics.
Now, as memes are a reflection of public opinion, along with constructive opinion, depending on the creator’s mindset, abusive contents are also created. It became necessary to control such abusive contents – shaming, trolling, defaming, etc. Moreover, the first and foremost offence lies in the creation of memes, as not all the contents are permitted for reproduction. Any reproduction made taking a still shot or video clip of a movie, web series, shows etc. which are copyright protected amounts to copyright infringement by the creator. Even, the recreation of a meme can amount to copyright infringement. This article will explain the legal provisions and hindrances in regard to memes and their sharing.
Legal provisions regulating sharing of memes
As per the provision under Sec. 2(e) of the Copyright Act, 1957, the creation of memes is considered as an artistic work, therefore, any reproduction, and copying to gain any profit, in monetary or virtual form, amounts to infringement of the copyright.
The memes get shared and copied constantly, and much easier on social media. Now there are two ways it is being shared – either by clicking on the share button, where the person posting the content is getting the credit of it automatically or by copy-pasting it giving clear credit to the original creator. However, it is a much-practised activity that is copying the content, reproducing it in its own ways, and posting it in the recreator’s name, which is a clear encroachment.
Sec. 107 of the Copyright Act prescribed the statutory framework for the determination of a sharing or reproduction is fair use or an infringement. For the fair use of the content, certain specific conditions are required to be complied with. The parameters to decide the degree of fair use are as follows:
- The purpose of using the meme
- The amount of work to be used
- The effect upon the society on the use
- The nature of the work that is copyrighted
There is no specific rule defining the activities under fair use, as each and every case is different from the others. However, there are certain activities that can not be considered under fair use in any way such as – defamation in the name of freedom of expression, shaming in the name of criticizing, or abusing online. The mems, unfortunately, became a tool for online bullying.
Are memes a violation of copyright protection?
An important issue regarding memes is the usage of the original work.
In the book “First World Problems: A Fair Use Analysis of Internet Memes”, Ronak Patel expressed the concept of copyright violation in the case of memes. If a still has been taken from a full-length movie or web series and reproduced, it cannot be called a copyright infringement, as it is taking a nominal percentage of the original work; however, if the reproduction is from a still photograph or a drawing, painting or any other creative work, where the full work is involved in the creation of meme, then it may amount to copyright infringement.
In a case where a popular Indian comic group AIB used the images of Games of Thrones to create a meme, which resulted in a violation of the copyright protection, The concerned image posted by the team Game of Thrones were under the definition of the categories of the cinematographic stills and original works. As the stills are the entire end products in one, any reproduction was a violation of copyright protection.
However, it was argued that the meme came under the purview of ‘fair use’ and it probably didn’t affect much the potential market of the copyright holder.
To brief the matter, in the meme, a character from the show Game of Thrones was superimposed on a new background, with an intention to create funny content.
Here the doctrine of ‘fair use’ was used extensively, but it was evident that the purpose of the meme was to advertise the products and endorse AIB.
The content creator or the meme creator while expressing their idea to create humorous content gets into a legal consequence. There are instances where memes have brought legal charges on the creator and the meme was obliged to be taken down.
A young lady created a meme that amounted to be offensive to a well known political leader. She was arrested and was under custody for around two weeks, and had to take down the meme and apologize in writing.
Another teenager from UP faced Section 67 (publishing or transmitting obscene material in electronic form), 67 A of the IT Act (transmission or publishing of sexually explicit material), and Section 292A (putting into circulation a grossly indecent or scurrilous picture) of the IPC (Indian Penal Code), for circulating an inappropriate image that was apparently morphed to make the person in the photo look like another political leader.
These incidents raised confusion and debates, especially on social media, whether such criminal intimidation is a violation of their freedom of expression, but in opposition, it was argued that freedom of speech and expression under Art. 19 of the Constitution of India does not imply that a person has the right to defame or cause mental trauma to anyone.
What are the rights of a meme creator?
Though the copyright law in India is not clear about the rights and remedies in case of a parody or reproduction of original work, it does not mean that no action can be taken if there is a violation to the concept of ‘fair use’.
The meme creator has all the rights of a copyright protection owner, over the original work. It is a fact that image-based memes can not be prevented from being shared, but, if the creator finds out that using the original work or reproduction of the original work is gaining some monetary profit to the other person, the original creator can claim for royalty.
However, memes, first of all, hardly involves into monetary profit, and even if it does, the amount is nominal. In case the original creator finds out, the matter is settled easily, therefore, there is hardly any instance of copyright violation matter in case of memes are taken to the court.
The Indian copyright law is yet to bring specific provisions to regulate the memes being posted and one of the major hindrances in the implementation is that in the era of the internet, it is much difficult and time-consuming to find out the real creator. Therefore, the matter is highly dependent on the concept of ‘fair use’, which implies, a meme is no a violation of law unless it is causing harm to anyone directly or indirectly, and not against the public policy.