Meme copyright issues

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Memes can be of varied kinds but they can broadly be classified into four categories: cinematographic stills, rage comics, personal photographs and original works.

For cinematographic skills, a 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. Rage comics are created using simple, digital drawing software such as MS Paint which depict a series of human emotions and concluded with a satirical punchline. For the third category, photographs of people or animals are made into meme by superimposing text to depict one emotion. In the final category, the memes are created with the sole intention of becoming a meme. Such memes can be best described as an illustration.

The classification in these 4 distinct heads aids in determining the copyright protection that could be afforded to a meme but would vary on a case to case basis. The second and the fourth category would generally have a greater thrust in getting protection because they are original creation, while the first and third are copied with other sources and, therefore, their originality would have to be proved, lack of which could lead to copyright infringement.

Copyright protection in Various Jurisdictions

US

For a meme to garner copyright protection, it would have be satisfy four conditions: i) it falls under the enumerated subject matter under the US copyright late; ii) it is an expression which is protectable; iii) it has a modest amount of creativity; and iv) it is “fixed”.

i) 17 U.S.C. § 102 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 would fall under the head of pictorial, graphical or motion picture.

ii) In copyright law, ideas are unprotected but the expression of an idea can be protected. This means that the form and manner in which an idea is expressed is protected not the idea itself Baker v. Selden. A meme, generally, is a comment, satire, ridicule or expression of an emotion which is one of several way of expressing an idea.

iii) Further, for the meme to successfully claim protection, it would have show prove that it is original work of the author and has a modest amount of creativity. The creativity threshold is low, and even a slight amount would suffice as per the judgement of the Supreme Court of United States in the case of Feist Publications, Inc., v. Rural Telephone Service Co.

iv) Finally, the work has to fixed as per 17 U.S.C. § 101 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. Publication of the meme on the internet would qualify as been fixed.

Since, all four categories of memes fall under the enumerated subject matter, are an expression of an idea with a slight degree of creativity and have been fixed, they would enjoy copyright protection.

India

The protection under the Indian copyright regime is more straightforward than the US. Under Section 2(c) 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. Since the section uses the phrase “whether or not possessing artistic quality”, the memes in category two and four would enjoy protection for they are original creations in the form a painting, drawing or photograph. As for the first and third category, 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’. The meme is a modification of that already existing artistic work.

Infringement of Copyright and Defences in Various Jurisdictions

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. However, copying of such memes by others could violate the copyright of the original meme creator. Similarly, cinematograph stills and personal photographs which have been created into memes using existing works, which could have a copyright over them, would also potentially infringe the underlying copyright. The determination is made on a case to case basis. If it is found that the meme has made use of a copyrighted work without due permission from the original owner, it would amount to copyright infringement. copyright infringement However, there are defences available for such use in various jurisdictions which could exempt the meme from attracting liability for the infringement.

US

The strongest defence a meme could claim is under 17 U.S.C. § 107 which speaks of Fair Use 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. All the factors have to be weighed together and an overall assessment is made whether the infringing work would qualify as fair use. Particularly in terms of memes, the analysis of the four factors would be as follows:

1) The purpose or character of use

In Campbell v. Acuff-Rose Music, Inc. the court introduced the concept of ‘transformative work’ 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 decimating humour to the public. Such memes being transformative would be covered by fair use. However, 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. This factor would way 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 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.

2) The nature of copyrighted work

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 protection which the memes are violating.

3) The amount and substantiality of portion used

In this test not only the quantity of the work copied is considered but the quality that is copied is considered. 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. 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. This factor would be ruled in favour of the memes.

4) Effect on the market

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. 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. This factor would weigh in favour of memes such as cinematograph films and personal photos. 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. For example, Warner Brothers was sued for infringing the Nyan Cat meme by using it its game Scribblenauts.

India

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

1) Amount and sustaintiability of dealing

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

2) Purpose of Copying

Under Section 52(1)(a) 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 . For example, when the Indian comedic group All India Backchod (AIB) parodied Game of Thrones through a series of meme, the primary purpose was to advertise products of companies that have endorsed the group and it would not be fair dealing.

3) Effect on potential market

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

However, since no case has been litigated in India, what the actual law would be is unclear.

References

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

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