Picture this: you are scrolling through a popular social network and you suddenly come across an illustration from a movie or TV show which depicts a picture accompanied by text or a dialogue said by the protagonist. You find it either funny, humorous or inspirational and forward it to others in your contacts. What is defined here in approximately 2-3 lines can be synopsized in one word – MEME. It can be anything from a movie to tv show or an animated series etc and you don’t need an upscale degree for that. A meme can be generated by mere clicks and it is ready to be used. However, once the Meme gets entered in a domain of social media, it is difficult to trace its point of origin or the author. This in return becomes a precarious situation for the makers of the original content i.e. makers of movie or Tv show. The legal fickle here is that whether or if these bona fide memes which are just intended for comic relief can be legally detrimental and attract the wrath of copyright infringement?
Memes and law
Seeing that most of the meme are sourced from the former works, it has been considered that that memes are violative of copyright of authors of the original works. Recently, parents of the popular meme “Success Kid” threatened to sue Republican candidate Steve king for using the meme in efforts to promote his fundraising efforts. In India, the legality of Memes remains unanswered due to lack of litigation.
From a legal point – it is important to understand where does meme falls under the copyright act. As per Section 2(f) of the copyright act (“Act”), a “cinematograph film” means any work of visual recording produced through a process from which a moving image may be and includes a sound recording accompanying such visual recording and cinematograph shall be construed as including any work produced by any process analogous to cinematography including video films. Upon reading, it can be understood that a motion picture or any moving picture falls under category of cinematography under Copyright Act.
We can also draw reference to Section 14 of the Act, which explains “Copyright” as an exclusive right subject to the provisions of the Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely: -
……d) in the case of a cinematograph film, -
(i) To make a copy of the film, including-
(A) A photograph of any image forming part thereof; or
(B) Storing of it in any medium by electronic or other means;]
(ii) To sell or give on commercial rental or offer for sale or for such rental, any copy of the film;]
(iii) To communicate the film to the public;……
Moreover, as per Section 51 of the Act, inter alia, Copyright in a work shall be deemed to be infringed, when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under the Act or in contravention of the conditions of a license so granted or of any condition imposed by authority, does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright.
In a nutshell, it can be perceived that usage of any photograph from a motion picture without the permission of the makers can lead to violation of his /her exclusive right.
However, not all violations can be termed as copyright violation. There are certain exemptions also, wherein provisions could be overridden. This has been granted by virtue of Section 52 of the Copyright Act. The same is reproduced below:
Section 52 – Certain Acts not to be infringement of copyright
(1) The following Acts shall not constitute an infringement of Copyright, namely: -
(a) A fair dealing with any work, not being a computer programme, for the purposes of-
(i) Private or personal use, including research;
(ii) Criticism or review, whether of that work or of any other work;
(iii) The reporting of current events and current affairs, including the reporting of a lecture delivered in public.
(m) The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;
(v) The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any would, cast, sketch, plan, model or study made by him for the purpose of the work:
Provided that he does not thereby repeat or imitate the main design of the work;[***]
(y) in relation to a literary, 19[dramatic, artistic or] musical work recorded or reproduced in any cinematograph film, the exhibition of such film after the expiration of the term of copyright therein:
Provided that the provisions of sub-clause (ii) of clause (a), sub-clause (i) of clause (b) and clauses (d), (f), (g), (m) and (p) shall not apply as respects any Act unless that Act is accompanied by an acknowledgement-………
(zc) The importation of copies of any literary or artistic work, such as labels, company logos or promotional or explanatory material,that is purely incidental to other goods or products being imported lawfully]
(2) The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.
Following the above provisions, the issue related to exemption under fair use was discussed briefly in the case of Blackwood & Sons Ltd. V. A.N. Parasuraman, wherein the Apex Court held that to constitute a matter under fair dealing it is imperative that there must be no intention on the part of the so called copyright infringer to compete with the Copyright holder of the work so as to derive gains from such competition. Elaborating further, it was said that the intension of the Copyright violator in dealing with the work must not be improper as well.
Until now, there have been no provisions under the Indian Copyright Act which can determine the defence of fair use. However, Delhi High Court in the case of “The Chancellor Masters and Scholars of the University of Oxford Vs. Narendera Publishing House and Ors.” enumerates four principals drawing inspiration from Section 107 of the US Copyright Act. While explaining, the court said that all principals should be considered as a whole and not be treated separately. If any principal is given any special/ preferential treatment then it can detrimental in nature. The principals are as follow:
(1) Nature of use: whether the work is for educational use, review or criticism. As per the court the idea is to see the work if it merely supersedes or replace the original work or add something new with a further purpose or different caricature. If the work in result has turned into a completely new one with regards to expression or meaning, it could have a greater chance of availing the provisions of Section 52 of the Copyright Act.
(2) Inspect the nature of the copyright work: While examining the nature the Court should actually see whether at its core level it tends to overlap or cover such work. The Court also exercise a word of caution that this may not help as much as separating fair use from the infringing work where the work has become transformative work in nature.
(3) An assessment of the extent of copying should be carried: the court explained that the reproduction of the entire work would militate against the fair use. There could be instances wherein the copying could be substantial and the Court might consider it as fair use but there could be cases where the copied content would be insubstantial and we considered as copyright infringement.
(4) Ascertain the market harm in which it is intended to be projected: It is a duty of the court to not only check the extent of the market cost due to detrimental actions of the infringer but also check whether the unrestricted and widespread conduct could potentially impact on the intended market.
To summarise the above, if a person uses moving stills of films/TV shows and incorporate text and in return turning it into new artistic work for the purpose of non-commercial use, there are strong chances that it would pass the test laid down by the Court. It is imperative to point out that as of now there have been no judicial judgements that explicitly talks about the legality of memes and their use. Without the guidance of the court it is currently difficult to navigate and untangle the complexities surrounding this issue.