MEMEING AND INTELLECTUAL PROPERTY RIGHTS
Author: Priyamvada Singh, LL.M from Jindal Global Law School.
A picture, GIF, or video that has been modified with text or the overlay of other images for the purpose of sharing humour online, often on social media, is referred to as a "meme." You have probably seen one or two memes because they are commonly used on the internet, both in private online chats and more generally on highly used websites like Facebook, LinkedIn, and YouTube. You have probably seen one or two memes because they are commonly used on the internet. If the newly formed meme reflects the original intellectual work of the author, then copyright, which is a kind of protection for intellectual property, may instantly exist, just as it does for other creative productions. Copyright allows owners to prevent infringement, which refers to the use and exploitation of an author's work by other parties such as individuals or companies. Typically, the owner of the copyright is the artist who created the work, and they have the legal rights to file a lawsuit against anybody who utilises their work without their authorization. Those who are addicted to memes should be aware that the original photograph or video that served as the meme's inspiration is almost definitely protected by pre-existing copyright protections. It's possible that the person who made the original materials is also the owner of the copyright to those works, but it's also possible that they sold the rights to another individual or company. If you use the original work that is protected by copyright without first obtaining the owner's permission, you will be in violation of the owner's copyright and may be compelled to pay damages. Many of the pictures and videos that can be found on the internet have been made available for public use by their original creators. This has been accomplished either by the materials being placed in the public domain (which effectively waives the copyright) or by their release under a "open" licence, such as "Creative Commons," which allows anyone to use the materials as long as they adhere to the open license's generally lenient and permissive terms. On the other hand, the vast majority of the photographs, films, and other types of material that can be found on the internet can only be used with the consent of their owners, and even then, only if the user pays a licencing fee and complies with a set of regulations. There are a number of websites that provide huge collections of "stock" goods that may be used by anybody who is prepared to pay a small fee and adhere to the terms of the applicable licence. These websites give these collections for free. Other artists exercise a greater degree of control over the exploitation of their assets; as a result, they demand more prices and are only willing to give licences with more stringent requirements.
The Intellectual Property Judiciary all over the globe is now concerned about a meme for the first time in recent history. Because there are an infinite number of possible permutations and combinations that memes may include, the judgement is still out on the issue of whether or not there is significant fair dealing in relation to the original artwork. In the example that was just shown to you, the inquiry is an attempt to probe further into the notorious Drake effect argument. The internet's meme-makers have, on several occasions, exploited the meme template of prominent musician Drake from his successful music video Hotline Bling in 2015 as a hilarious method to show their disapproval of one set of options while simultaneously expressing their approval of another group of options.
Legal Protection for One's Own Ideas
The work that an artist creates is his exclusive intellectual property. It should not come as a surprise that the law has therefore endowed this property with certain rights. The Copyright Act of 1957 is the piece of legislation that governs copyrights and the violation of such rights in India. Any kind of creative work may fall under the protection of this kind of legal right, which is granted under the umbrella of intellectual property rights. Copyright protects not just paintings and other traditional forms of art but also screenplays and characters that artists generate specifically for their work. These might be considered works of art. The one and only need is that the phrase in question has to be unique.
Typically, the owner of the copyright is the artist who created the work, and they have the legal rights to file a lawsuit against anybody who utilises their work without their authorization. Those who are addicted to memes should be aware that the original photograph or video that served as the meme's inspiration is almost definitely protected by pre-existing copyright protections. It's possible that the person who made the original materials is also the owner of the copyright to those works, but it's also possible that they sold the rights to another individual or company. If you use the original work that is protected by copyright without first obtaining the owner's permission, you will be in violation of the owner's copyright and may be compelled to pay damages. Many of the pictures and videos that can be found on the internet have been made available for public use by their original creators. This has been accomplished either by the materials being placed in the public domain (which effectively waives the copyright) or by their release under a "open" licence, such as "Creative Commons," which allows anyone to use the materials as long as they adhere to the open license's generally lenient and permissive terms. On the other hand, the vast majority of the photographs, films, and other types of material that can be found on the internet can only be used with the consent of their owners, and even then, only if the user pays a licencing fee and complies with a set of regulations. There are a number of websites that provide huge collections of "stock" goods that may be used by anybody who is prepared to pay a small fee and adhere to the terms of the applicable licence. These websites give these collections for free. Other artists exercise a greater degree of control over the exploitation of their assets; as a result, they demand more prices and are only willing to give licences with more stringent requirements.
With memes, even while it may be shown that the original piece of artwork was stolen, the person who created the meme has gone to the trouble of altering the meaning of the image and the way it is presented. In addition, it should come as no surprise that the market for the original piece of art is not negatively affected by the existence of the meme and the memer. A person who wants to see Hera Pheri (the movie from which the still used in the meme above is copied) will not be deterred from doing so after viewing a meme about it in a different context, particularly if the infringed content is of a comedic character. The meme artist will have transformed the concept, as well as the connotation, of the artwork by adding a hilarious touch to the picture in a context and way that are wholly distinct from one another. On the other hand, the original artist is entitled to a portion of the proceeds if the meme in question is utilised in a commercial in the hopes of increasing consumer engagement and/or royalties. In the context of ads, the principle of fair dealing does not apply. Those who earn their income off of the publication of memes on the internet are probably going to be affected by this. However, "influencers" or meme accounts who are aiming to gain money through advertising and endorsements are more likely to break the requirements for anti-infringement.
The utilisation may not have a major adverse effect on the exploitation of the original work or on a market that is already or potentially available for it. If the work is shown to be of a transformational character, then it is necessary to realise that the mememer has not only contributed his ability, but also his ingenuity and his efforts to create the creative meme that is not only funny, but is also relevant to hundreds, even thousands of its viewers. If this is the case, then the work must be acknowledged as having a transformative nature. It is quite appropriate for him or her to demand compensation for the copyright of their meme. He or she originated the meme and contributed originality as well as words, music, and video to it. After all, we are talking about his 'art work' here.
Fair Use Doctrine
In the eyes of the law, everyone is equal, and celebrity — or the lack thereof — must not be a mitigating factor when assessing whether or not someone is entitled to anything. To put it another way, the law does not take into account a person's fame when determining whether or not it is appropriate to limit his rights. This line of reasoning not only has flaws in it, but it also contributes to an unfair system that affects society as a whole. It exacerbates the gap that already exists between them and establishes a new level of inequity. Every artist on the planet ought to have the same amount of copyright protection for their own works. However, despite the fact that copyright is used to safeguard the rights of creators, regulation in this area should also encourage creative endeavours and prevent artists from becoming discouraged and giving up. As a result of this, the principle of fair use is put into practise.
The fair use theory enables artists to improve upon preexisting works of art without fear of being accused of infringing upon the rights of the original creators. A fair use doctrine consists of four components, one of which must be established in order for the court to find that the artist who is being accused of infringing upon someone else's copyright was not need to get permission from the creator of the copyright in the first place. This factor is also known as the famous fair use test. The following are examples of these four:
The defendant in this case has asserted that the transformative work defence applies to the circumstances. In everyday language, transformative uses are those that change the look or character of the original copyrighted work to the point that the use is no longer seen as an infringement on the work. This defence was conceived of as a theory by Judge Leval in the year 1990, and in the recent years, it has been the primary defence in all rulings involving fair use. Nevertheless, there is a noticeable gap in the perspectives of the judges with respect to the kinds of work that qualify as transformational. This theory is very malleable, and it validates the judge's position even if it is not in conformity with the precedent that has been set. The transformative use of a work protected by intellectual property rights is dependent on four elements. In order to provide evidence of a transformative use, the copy-protected content must be incorporated into the newly created work in a manner that fundamentally alters its original meaning. Then, in order to establish fair use, the defendant has to explain not only why the use of such material was necessary in the new artwork, but also how the new work has a distinct meaning to it. This is necessary so that the court can determine whether or not the defendant has engaged in fair use. In this manner, the new work would not have had an influence on the target market demography of the copyrighted piece, and the original artist would not have suffered a financial loss as a result of the new work. Because there are no set guidelines for the transformative use of information that is protected by intellectual property rights, the courts must rely on their intuitive abilities to make judgements in this area. The idea-expression dichotomy is an essential tool for us to use in this respect. The distinction between an idea and its expression came up initially in order to guarantee that the process of coming up with an idea is also safeguarded. When it comes to matters of intellectual property, the artist is often the one who gives life to the work and is given credit for the copyright. On the other hand, according to this duality between concept and expression, the copyright for the artwork belongs to the artist who conceived the idea behind it in the first place. In order to provide evidence of this, the language is required to be very exact, and the arrangement must be very careful.
Trends in Legislation and the Judicial System
According to judicial trends that have been created on the basis of precedents that have been seen, there are four main conditions that need to be achieved to constitute the fair use of a copyrighted item in such a manner that it does not draw copyright infringement penalties. These include the requirements that neither the intention nor the nature of the work be of a commercial nature, and that it be used to further the goals of an educational or charitable organisation. In addition, the kind of the job, the impact it had, and the fraction that was utilised are all evaluated and studied as well. In the event that the work is transformative in character, the material in question does not have copyright protection. In Indian copyright law, the transformative work concept is fraught with ambiguity and needs significant further development. The United States of America is the birthplace of this theory, which is still in its infant stage. In the court of law, the judges will apply this concept while maintaining their own intuitive assessments on a case-by-case basis in order to make decisions. The concept of 'fair dealing' is discussed in Section 52 of the Copyright Act, which was passed in 1957. In particular, it is Section 52 (1) (a) (ii) that stipulates the consequences of fair dealing on the violation of copyright do not incur responsibility. This provision was added in 1999. In order to pass both the four-factor test and the circumstantial evidences, the infringing content in issue must not have a detrimental impact on the financial market of the original copyrighted work. This is done to ensure that the original artist does not suffer a financial loss as a result of the infringement. The information that is protected by intellectual property rights must be incorporated into the new work in such a manner that it changes the significance of the earlier work. In order to establish what constitutes fair use, the defendant has the burden of proving not only that the incorporation of the relevant material was necessary for the creation of the new artwork but also that the latter has its own unique significance. The original artist would not have experienced a financial loss as a result of the new work since it would not have had this kind of impact on the market demographics of the copyrighted property. When it comes to the transformative use of information protected by intellectual property rights, the judges must depend on their own instincts to make decisions since there are no concrete guidelines to follow in this area.
In the case of Campbell v. Acuff Rose Music Inc., which took place in the United States of America and was within the purview of the Copyright Act of 1976, the issue of fair use was brought up. When analysing the function and nature of the present work, one of the questions that was posed was whether or not the commercial purpose of a work is a significant aspect, holding a deciding element. The court argued that the commercial purpose of a work is just one component of the examination into the purpose and character of the work for the purposes of determining whether or not there is fair use, and that the commercial purpose of a work does not comprise the full scope of the subject. The nature of the copyrighted work, the amount and quality of the section used in relation to the copyrighted work as a whole, and the effect of the use on the copyrighted work's potential market are some of the additional aspects that need to be taken into consideration. In this particular case, the court of appeals erred in drawing the conclusion that the parody performed by 2 Live Crew (the defendant) was unfairly competitive due to the fact that it was commercial in nature. There is no equivalent evidentiary presumption about market injury for either the first criteria (the type and purpose of the use), or the fourth factor. In addition, due to the fact that the cover performed by 2 Live Crew is satirical in character, the judge made an error in ruling that the defendant had plagiarised an excessive amount from the song performed by Roy Orbison. Reversed and sent back for a market damage assessment, along with the amount that was deducted from the initial, as well as the components of its transformation.
The Honourable Court found that in order for a parodyist to produce a new composition that makes a comment on the work of another author, he or she is obliged under copyright law to use some of the components that were originally written by the original author of the work being parodied. In order to effectively communicate its point, parody must imitate the original. However, depending on whether the original is being praised or critiqued, the imitation may or may not be judged to be an acceptable kind of fair use.
Participation of a Celebrity in a Meme
The famous person is the primary focus of the photograph in the content that was used. The expression, which is the primary focus of the meme, was created by him or her, making him or her the expression's original artist. To put it another way, the celebrity is the central focus of the meme. In this day and age of digital technology, memes are marketers' subject of choice and have been employed as a marketing approach on several occasions. In this manner, not only is the celebrity's creativity being utilised for reasons other than what the celebrity intended them to be used for, but the infringers of the artwork are also making a lot of money off of it. Even when a piece of art is posted on the internet where anybody with a smartphone and an internet connection may see it, the original artist still retains ownership of the copyright to the work. Copyright refers to the inalienable right of a creator (such as an author, artist, musician, or other creative) to control how their work is used by others. Because of this, a work that has been granted copyright protection cannot be reproduced, transferred, or appropriated by other parties unless the author gives their permission first. In addition, the artist retains authority over whether the work is shown or performed in a public setting. As was said before, the copyright is a right that arises with the production of an original piece of work; nevertheless, registration of copyright is only required in the case of a legal dispute or the enforcement of economic rights. However, in order to give a necessary balance to the rights of those who possess copyrights, some exceptions to this exclusive right exist. These exceptions are known as 'user rights,' and one of them is the Fair Use Doctrine.
The preservation of an artist's intellectual property is not only important to the artist himself as a person, but it is also important to society as a whole. The failure to adequately regulate the market may be just as destructive as its over regulation. The rights of the artist and the appropriate use of their work need to be balanced in order for the market to function properly. If an artist's rights are totally taken away from them, not only does this put a damper on the potential quality of the artist's work, but it also acts as a demoralising factor for other current artists. The face of the celebrity, his renown, and his celebrity status all play a significant influence in the success that the meme has had in gaining popularity. It is quite probable that this meme template would not have been conceivable at all if the meme had included a plain Jane face that no one recognised. It is not the meme itself that the celebrity wants credit for; rather, it is his renown and all of the time, effort, and intelligence that he has put into being a well-known celebrity. Therefore, a significant contribution to the popularity of the meme may be attributed to the public persona of the celebrity in question. As a result, it is the only justifiable thing to do to give the celebrity the credits, both materially and in other ways, as a reward for the status that he has worked sincerely to obtain.
The Contribution of Creators to a Meme
Not only does it take ability to create something that is worthy of becoming a meme, but it also takes a lot of energy and the ingenuity to bring the work to life. It is required to have the same level of copyright protection as any high-end artwork or a musical piece that has won a Grammy award. Those who earn their income off of the publication of memes on the internet are probably going to be affected by this. However, "influencers" or meme accounts who are aiming to gain money through advertising and endorsements are more likely to break the requirements for anti-infringement. To all of today's meme lords, may this serve as a cautionary and sobering lesson.
If there is a meme going around that is getting people's attention, there should be an investigation into who could have a claim to the intellectual property rights associated with that meme. This investigation should be based on the creator credits, the source that was repurposed, and other factors. These will let us know whether or not we are required to have the appropriate licence. It is very necessary to ensure that no one's intellectual property rights be violated in any way if there is to be any possibility of monetary gain resulting from the meme. It makes no difference whether the author is going to indicate in an indemnity that the creator (or creators) of the meme in issue are responsible for ensuring that no other party's intellectual property rights are violated; this should be the case regardless of the author's intentions. This is due to the fact that information may now travel at the speed of light in today's world. There are always going to be remnants of anything that has been posted on the internet after it has been done; nevertheless, the popularity of a meme may reach its height and then begin to decline before one finishes reading this phrase. In order to protect the interests of all parties involved, the investigations need to get underway as soon as possible.
AT, “Internet Memes and Intellectual Property Risks” (LawJournalNewsletters.comDecember 27, 2012) <https://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2012/12/27/internet-memes-and-intellectual-property-risks/> accessed November 5, 2022
CB, “Campbell v. Acuff-Rose Music, Inc..” (Casebriefs Campbell v AcuffRose Music Inc Comments2010) <https://www.casebriefs.com/blog/law/intellectual-property-law/intellectual-property-keyed-to-merges/copyright-law/campbell-v-acuff-rose-music-inc/> accessed November 5, 2022
Dunlap D, “Memes and Intellectual Property: Copyright - Parody TV” (Parody TV August 9, 2022) <https://parodytv.one/characters/memes-and-intellectual-property-copyright/> accessed November 5, 2022
Jayaraj S, “At Spicyip We Love IPR, Ab Ki Baar...” (SpicyIPApril 7, 2014) <https://spicyip.com/2014/04/at-spicyip-we-love-ipr-ab-ki-baar.html> accessed November 5, 2022
Meghana Mishra, Anusaya Nigam (September 25,2017) Game of Thrones Memes: Potential Copyright Infringement or Fair Use?, The Viewpoint, Bar and Bench, accessed November 5, 2022
Radhika Oberoi (2016) DU Photocopy Case, Available At: https://thewire.in/education/du-photocopy-case, accessed November 5, 2022
Ryan J, “Memes and Intellectual Property: What Happens to Creators' Copyright?” (abboudmediaAugust 8, 2022) <http://abboudmedia.com/characters/memes-and-intellectual-property-what-happens-to-creators-copyright/> accessed November 5, 2022
Sanika, “Sphere of Memes, Business and IPR” (CPIPJuly 30, 2020) <https://www.cpip.in/blog/opinion/sphere-of-memes-business-and-ipr/> accessed November 5, 2022
Stacy Lantagne, Famous On The Internet: The Spectrum Of Internet Memes And The Legal Challenge Of Evolving Methods Of Communication, 52, University of Richmond Law Review, 387, (2017)
Stephenson, “Companies and Copyright: Memes and the Intellectual Property Issue” (RSS2020) <https://www.stephenson.law/blog/companies-and-copyright-memes-and-the-intellectual-property-issue> accessed November 5, 2022