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.
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:
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.
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.
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:
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.
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
Conclusion
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.
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