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Internet meme

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Memes are images superimposed with text to convey a comical impression of cultural symbols or social ideas. It is considered as a viral sensation on the internet. It travels quickly from person to person.[1] via social media website or websites designed specifically for the purpose of sharing memes, such as 9GAG. Memes can be of varied kind and some of the most popular formats are cinematograph still, personal or stock photographs, rage comics and illustrations meant to be a meme. [2]

In a cinematographic skills, part of the entire end product is taken out of context and presented solely for its face value. The still is generally accompanied by a superimposed text of which conveys a distinctive idea or comment such as the Boromir meme[3], Gru’s Plan,[4] Great Gatsby Reaction[5]. Rage comics are a sub-category of memes which are created using simple, digital drawing software such as MS Paint which depict a series of human emotions and concluded with a satirical punchline[6]. Photographs of people or animals can also be turned into memes by superimposing text to depict one emotion such as the Distracted Boyfriend and [7] Overly Attached Girlfriend [8]. Other type of memes are purely viral sensations for example, Keyboard Cat[9] and Bongo Cat [10].The eligibility of any of the memes listed above to get copyright protection would depend on the copyright law of the country in which such protection is sought.

Copyright Protection in Various Jurisdictions[edit | edit source]

US[edit | edit source]

Main article: Copyright#Obtaining protection

Under the US Copyright law, a creation gets copyright protection if it satisfies four conditions under 17 U.S.C. § 102[11]. For a meme to get copyright protection, it would have be satisfy four conditions: i) it falls under one of the categories of work which is protected under the law; ii) it is an “expression”; iii) it has a modest amount of creativity; and iv) it is “fixed”.[12]

Eligible Works[edit | edit source]

17 U.S.C. § 102 [13] enumerates the subject matter over which copyright could be enjoyed namely, literary work, musical work; dramatic work; pictorial; graphical and cultural works; motion pictures, etc. Broadly memes could fall under any of the heads of pictorial, graphical or motion picture.

Expression[edit | edit source]

In copyright law, ideas cannot get copyright protection but the expression of an idea can be protected. This is fundamental to copyright law. This means that the form and manner in which an idea is expressed is protected not the idea itself. This was given in the case of Baker v. Selden. Since a meme is essentially a comment, satire, ridicule or expression of an emotion it constitutes the expression of an idea.

Originality[edit | edit source]

For the meme to successfully claim protection, it would have to show that it is original work of the author and has a modest amount of creativity, since the United States has a low threshold for what constitutes creativity[14]. Memes are comments about the popular culture or social ideas and therefore the use of the text would have some amount of creativity.

Fixation[edit | edit source]

17 U.S.C. § 101[15] requires the work to be 'fixed' which means that its “embodiment in a copy or phonorecord is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory nature”. The medium here could be a book, musical recording, video and has also been widened to include publication on the internet.

India[edit | edit source]

Under Section 2(c)[16] of the Indian Copyright Act, 1957, a meme could be classified as an ‘artistic work’ which states that an artistic work includes painting, sculpture, drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality.[12] The section uses the phrase “whether or not possessing artistic quality”, the memes that are rage comics or those such as Keyboard Cat would enjoy protection as they are original creations in the form a painting, drawing, photograph or short video clip, despite not having artistic quality.[17] Memes that made from cinematograph still or photographs, the original image in the background for the meme would also be protected as the picture or the still from the series/movie is an ‘artistic work’. [18] These meme are a modification of that already existing artistic work with some little amount of creativity and therefore, they would also enjoy copyright protection.

Copyright Infringement and Possible Defences[edit | edit source]

Copyright Infringement[edit | edit source]

If it is found that the meme has made use of a copyrighted work, such as the movie still or photograph without due permission from the original owner, it would amount to copyright infringement. Rage comics and memes created for the sole purpose of becoming memes would normally be original works of the creator and therefore, the question of infringing other copyright work does not arise[19]. This does not mean that all memes made from movie still or photographs are infringing copyright. There are defences available for such use in various jurisdictions which could exempt the meme from attracting liability for the infringement.

Defences in Various Jurisdictions[edit | edit source]

US[edit | edit source]

Main article: Fair use

Fair Use is a defence under 17 U.S.C. § 107[20] of the US Copyright Law which protects work that have made using other copyrighted works. The section provides that if a copyright work is reproduced for the purposes of criticism, comment, news reporting, teaching, scholarship or research, it would not amount to infringement. The use of the term “such as” in the section denotes that the list is not exhaustive but merely illustrative. These four factors are subjective in nature and the weight of each factor varies on a case to case basis. [21] All the factors have to be weighed together and an overall assessment is made whether the infringing work would qualify as fair use.

Steps to Understand Fair Use for Memes[edit | edit source]

Particularly in terms of memes, the analysis of the four factors would be as follows:

The Purpose or Character of Use[edit | edit source]

In Campbell v. Acuff-Rose Music, Inc. the court introduced the concept of transformation which goes into the inquiry whether the infringing work altered the original with a new expression, meaning or expression or merely superseded or supplanted the original work. Memes are transformative in nature as they have no relation to the original work and the motive behind the communication of the meme is personal, in terms of disseminating humour to the public. Such memes being transformative would be covered by fair use.[21] However, copying memes that are made for the sole purpose of being memes would not enjoy this protection as there is no transformation- the copying has the same purpose as original meme which is communicate humorous anecdotes.[22]

This factor would weigh against memes which have been used for commercial purposes because then the work has not been created for the communication of humour but for economic gain. For example, Grumpy Cat won $710,001 in a copyright law suit against the beverage company Grenade which used the Grumpy Cat image on its roasted coffee line and t-shirts.[23]

The Nature of Copyrighted Work[edit | edit source]

This factor weighs against all types of memes because the original work is an artistic creation that has been published and thus the latter enjoys protection under copyright which the memes are violating. However, as memes are transformative, this factor does not have a lot weight.[24]

The Amount and Substantiability of Portion Used[edit | edit source]

In this test not only the quantity of the work copied is considered but the quality that is copied is considered.[25] clarified this position. For cinematograph still, only a small portion of the entire film is copied whereas for rage comics and personal photographs, the entire portion has been used to create the meme. Despite this, all categories of memes would be considered to be falling under fair use because the text that is added to those images adds value, without which it would just be picture.[21] Moreover, the heart of the work is not affected because the still/picture is taken out of context and portrays something entirely different from what the image originally wanted to depict.[26]

Effect on the Market[edit | edit source]

In this factor the court analysis whether the meme would cause harm to the actual market of the original copyright work and also the harm it could cause to the potential market.[27] The target audience for the original work and meme is entirely different as the latter is taken out of the context of the original and created for the use and dissemination on social media.[28] Rage comics and memes created for the purpose of being memes are an exception to this because the target audience for both is the same and copied work could infringe on the potential market of the original. Warner Brothers was sued for infringing the Nyan Cat meme by using it its game Scribblenauts.[29]

India[edit | edit source]

Main article: Fair dealing

Any distribution of a work which has a copyright, wholly or partly, would constitute an infringing copy under Section 2(m)(i)[30] of the Copyright Act, 1957. India follows a Fair Dealing approach as an exception to copyright infringement under Section 52(1)(a)[31] for the purposes of private or personal use, criticism or review. The analysis requires three steps:

Amount and Substantiability of Dealing[edit | edit source]

A meme makes use to existing copyright work whether it is a cinematograph still, rage comic, personal photograph or a meme made for the purpose of being a meme. However, since a meme is made for comedic purposes, taken out of context of the original work, they are transforming the work and creating a new work[12]

Purpose of Copying[edit | edit source]

Under Section 52(1)(a)[32] the purpose is restricted to criticism or review. A meme, as long as it is a parody or a criticism of the original work would be protected under the exception but once an element of commercialisation comes in, they would no longer be exempted and because the purpose no longer falls under the those mentioned in the section .[17]  When the Indian comedic group, All India Bakchod (AIB) parodied Game of Thrones through a series of memes, the primary purpose was to advertise products of companies that have endorsed the group and it would not be fair dealing.[33]

Effect on Potential Market[edit | edit source]

There must be no intention on part of the infringer to compete with the original owner of the work and derive profits from it[34]. Since, memes are generally meant for comedic value and have no intention to supplant the market of the original creator, they would be squarely fall within the ambit of this section. [35]

  1. Gil, Paul. "What is a Meme?".
  2. S Iyer, Aishwaria; Mehrotra, Raghav. "A Critical Analysis of Memes and Fair Use" (PDF). Rostrum Law Review.
  3. "One Does Not Simply Walk into Mordor". Know Your Meme. Retrieved 20 April 2019.
  4. "Gru's Plan". Know Your Meme. Retrieved 20 April 2019.
  5. "Great Gatsby Reaction". Know Your Meme. Retrieved 20 April 2019.
  6. "Rage Comics". Know Your Meme. Retrieved 20 April 2019.
  7. "Distracted Boyfriend". Know Your Meme. Retrieved 20 April 2019.
  8. overly-attached-girlfriend "Overly Attached Girlfriend" Check |url= value (help). Know Your Meme. Retrieved 20 April 2019.
  9. "Keyboard Cat". Know Your Meme. Retrieved 20 April 2019.
  10. "Bongo Cat". Know Your Meme. Retrieved 20 April 2019.
  11. "17 U.S. Code § 102 - Subject matter of copyright: In general".
  12. 12.0 12.1 12.2 Rout, Shrabani. "Memes and Copyright: Fair Use or Infringement?". Mondaq.
  13. "17 U.S. Code § 102 - Subject matter of copyright: In general".
  14. "Feist Publications, Inc., v. Rural Telephone Service Co.", Wikipedia, 2019-03-06, retrieved 2019-04-25
  15. "17 U.S. Code § 101 - Definitions".
  16. "Section 2(c) in the Copyright Act, 1957".
  17. 17.0 17.1 Agarwal, Devika (2013-12-18). "Keep Calm and Share: Internet Memes & Copyright". Spicy IP.
  18. S Iyer, Aishwaria; Mehrotra, Raghav. "A Critical Analysis of Memes and Fair Use" (PDF). Rostrum Law Review.
  19. Offsay, Max. ""What Do You Meme?": A Fair Use Analysis". Columbia Journal of Law and Arts.
  20. "17 U.S. Code § 107 - Limitations on exclusive rights: Fair use".
  21. 21.0 21.1 21.2 Patel, Ronak. "First World Problems:' A Fair Use Analysis of Internet Memes" (PDF). UCLA Entertainment Law Review. 20 (2).
  22. Mishra, Meghna; Nigam, Anusuya (2017-09-25). "The Viewpoint- Game of Thrones Memes: Potential Copyright Infringement or Fair Use?". Bar and Bench. Retrieved 20 April 2019.
  23. Nakamura, Reid. "Grumpy Cat Wins $710,001 in Copyright Lawsuit: 'Memes Have Rights Too'". The Wrap.
  24. Offsay, Max. ""What Do You Meme?": A Fair Use Analysis". Columbia Journal of Law and Arts.
  25. "Harper & Row v. Nation Enterprises", Wikipedia, 2019-01-18, retrieved 2019-04-26
  26. M. Lantagne, Stacey. "Famous on The Internet: The Spectrum of Internet Memes and The Legal Challenge of Evolving Methods of Communication" (PDF). University of Richmond Law Review.
  27. "Fox News Network, LLC v. TVEyes, Inc, Nos. 15-3885, 15-3886 (2d Cir. Feb. 27, 2018)".
  28. Offsay, Max. ""What Do You Meme?": A Fair Use Analysis". Columbia Journal of Law and Arts.
  29. Woollacott, Emma. "Warner Brothers Sued For Infringing Cat Meme Copyright". Forbes.
  30. https://indiacode.nic.in/handle/123456789/1367?view_type=browse#collapse14504. Missing or empty |title= (help)
  31. https://indiacode.nic.in/handle/123456789/1367?view_type=browse#collapse14572. Missing or empty |title= (help)
  32. https://indiacode.nic.in/handle/123456789/1367?view_type=browse#collapse14572. Missing or empty |title= (help)
  33. Mishra, Meghna; Nigam, Anusuya (2017-09-25). "The Viewpoint- Game of Thrones Memes: Potential Copyright Infringement or Fair Use?". Bar and Bench. Retrieved 20 April 2019.
  34. "Blackwood & Sons Ltd. v. A.N. Parasuraman [AIR 1959 Mad. 410]".
  35. Agarwal, Devika (2013-12-18). "Keep Calm and Share: Internet Memes & Copyright". Spicy IP.

This article "Internet meme" is from Wikipedia. The list of its authors can be seen in its historical and/or the page Edithistory:Internet meme. Articles copied from Draft Namespace on Wikipedia could be seen on the Draft Namespace of Wikipedia and not main one.

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