The word meme has recently gained popularity, but its origin can be traced back to the year 1976 in a book by Richard Dawkins, ‘The Gene,’ in which he defined it as a unit of cultural meaning, such as a value or an idea, that is passed on from one generation to another. Contrary to that understanding, today, memes could be conceived as illustrations, photos, or movie excerpts, which are super-imposed with texts in a humorous undertone; hence, placed in an entirely fresh and funny context. These jokes are usually ironic and critical. Since their basic nature is humorous and the intent is not to infringe upon any rights, in particular, the question that arises is whether these memes are against the tenets of copyright and if they infringe the rights of the original proprietor of works.
Kinds of Memes
Memes can be broadly divided into four categories, namely cinematographic stills, rage comic memes, personal photographs, and original works. Most of these memes are inherently infringing in nature, while some are covered under the fair use doctrine. Let us consider the nature of memes as per the various categories they fall under:
- Cinematographic Stills: Herein, only a part of the entire end product (a movie/serial, etc.) is taken out of the context and used merely based on its face value. For introducing new meaning to the same, texts are used to add to the fun element of the basic picture. For instance, the “Shut Up and Take My Money” meme is a still taken from the TV series ‘Futurama.’ It may be governed under fair use, which will be dealt with later in another section.
- Rage-Comics: These are a series of web-comics, which are usually created using simple drawing software; for example, the popular MS Paint to depict stories of human experiences, which end with a satirical punch line. An example of this can be ‘Y U N O Guy,’ the ‘Forever Alone Guy.’
- Personal Photographic Memes: These are those memes that utilize self-clicked images of people to depict some emotion with superimposed text. The text therein may be modified, but the context remains the same to create ‘macro-series.’ An example of this is the ‘Bad Luck Brain’ meme and the ‘Good Guy Greg’ meme.
- Original Memes: These are created with the sole intent of being conceived as a meme and cannot be viewed in the seclusion of the superimposed text. An example of this is the ‘Nyan Cat’ meme. It is difficult to use such memes in any other context apart from that envisioned by the creator. Furthermore, it is difficult to change the nature of such a meme to have a truly transformative essence in any derivative work. Thus, the creator of such a meme is in a more authoritative position regarding his right.
Authorship over Memes
Copyright can subsist over works of original creative works. The threshold of originality depends on each jurisdiction in which the Copyright Law is imposed. The threshold of originality is softer in the UK and India when compared to the USA’s sweat of the brow doctrine. However, proving originality in terms of the length of the content plays a crucial role in some circumstances. Where the text is elaborate, say a book, proving originality is easier when compared to a two-liner poem. However, as pointed by Dennett, there are instances where a memorable sequence of four musical notes could be subject to copyright law. Although memes are difficult to memorize and they may not spread as widely as their other user-friendly rivals, they still qualify as a subject-matter, which is capable of replicating, subject to selective pressure and thereby, also capable of attracting the provisions of copyright law.
Fair-Use and Memes
The most relevant provision of copyright applicable to memes is the doctrine of fair use. Speaking of the law in the United States, the idea of promoting copyright is enshrined inherently in the constitution. However, at the same time, the Supreme Court has also held in cases like Campbell vs. Acuff Rose that some idea of fair use is necessary to fulfil the purpose of promoting arts and sciences. The ability to appropriate a part of a copyrighted, original work, as recently witnessed, incentivizes creative output, which is something that most societies want to encourage.
Decisive Factors to be taken into Consideration:
Factors that courts weigh to determine if the derivative or meme made utilizing the work in the prior art is acceptable when utilized without permission or not are mentioned below:
- The Purpose and the Character of the Derivative Work: It is requisite to project a transformative addition that would help differentiate between the original and the derivate work. While understanding the degree of transformation, the following questions need to be taken into consideration:
- Has the material that one took from the original work been transformed by altering or modifying the content to create something new in terms of the expression or meaning of the original content?
- And was the value that one added to the original work in the form of a contemporary insight or meaning? It simply means that the work shall not be plagiarised or just a republished version of the original work.
- The Nature of the Original Copyright Protected Work: ‘Nature of the work’ generally refers to the fact whether an original copyrighted work is factual or creative. When it comes to memes, since they usually utilize photographs, it is difficult to determine whether the photograph being used is in the factual or creative context. Considering the most popular example being spread across social networking sites, “the boyfriend eyeing another girl” is much more likely to be considered as a creative work since the same is not a variation of the creative expression. It rather develops a whole new meaning for which the meme was created.
- The Amount and Substantiality of the Original Work Used in the Derivative Context: Since a meme is a short and crisp statement inclusive of a photographic background, this factor is the least important consideration. However, it may not always be easy to conclude whether the amount copied by a meme is substantial or not. For example, the interlude of ‘Hotel California’is iconic enough that even if ten-odd seconds were played, it would be enough to create a recognizable connection. Therefore, the lesser the content one uses of a copyrighted work, the more likely it is to be considered fair.
- Effect on the Relevant Segment of the Market: It is the most crucial factor to be considered. This factor places reliance on whether the use has deprived the proprietor of copyright from the potential income or if it undermines a new or potential market where the copyrighted work is to be exploited. It is crucial since there are many Instagram pages, Facebook pages, or even YouTubers that utilize memes to generate income. Let’s take the example of Anuj Nakade, Tanmay Bhatt, Bhuvan Bam, PewDiePie, Gabe the Dog, Chapolinaoficial, or the Futurama memes for that matter.
Much recently, the question of copyright and meme was addressed when Getty Images had asked Get Digital, a comparatively smaller platform, to pay $868 for violation of its copyright in the ‘Socially Awkward Position’ meme as the opponents had published the same without prior authorization. Although the matter did not move to the court, if it would’ve, through the application of the aforementioned four-factors, it would have constituted fair use since Get Digital made modifications to the original work and the same changed the original purpose of the prior-meme. Also, both the two images did not interfere in the market of one another since the original picture is in the domain of photography while the use by Getty Images was under the arena of social media humour.
Re-Posting of Memes
The question of re-posting memes is at the heart of the fair use doctrine. Someone creates these memes by utilizing a picture that someone else has taken and then reposts the photo to his or her account with further additions. The creator is putting in a substantial effort by overlaying text on the picture or altering it peculiarly. The culmination of this process leads to the transformation of all fundamental things, including the original nature of the work, and thus, it is likely to qualify as fair use. But if someone who at a later stage, after the creation of a particular meme, takes an already-created meme and posts it without any transformation, then it is simply termed as ‘reposting’ – without any question or unresolved dilemma as to the existence of any commentary or criticism or parody. Simple reposting adds no additional
expression to the original work. However, there are instances like that when the federal court in Virginia held that the mere reposting of an image amounts to the fair use of an image. This is, however, doubtful since the jurisprudence on the interplay of memes and copyright has recently gathered pace and is still under scrutiny. In this case, a photographer took a time-lapse photograph of Washington, D.C.’s Adams Morgan neighborhood. The said film was found by a film festival online and utilized the same on its website to advertise the festival. The nature of proceedings addressing such concerns should not be underestimated. The Grumpy Cat won copyright and also a Trademark Infringement case worth over USD 700k in damages.
The use of memes could be regarded as a gross infringement of copyright vested in several thousands of authors especially, in the absence of fair use. However, no generalizations are possible as the use of this doctrine warrants a case to case subjective analysis of facts and circumstances; no blanket protection can be granted. The issue regarding the fair use of memes has not been subjected to litigation as of yet. If and when such an eventuality occurs, it would be safe to assume that the courts would evaluate the issues in a manner as illustrated through the four-factor test.