On the internet and in social media, emoticons and other symbols are commonly used for communicating emotions via messages in posts. Recently another form of representing emotions has arrived….‘Internet Memes’. Presently, internets Memes (hereinafter referred as ‘Memes’) are extensively used by netizens at large to express their ideas and emotions in a humorous manner. A meme usually consists of an image, a short video, piece of text, and the like shared rapidly by groups of internet users, often with slight variations. Sharing a meme within a closed circle of friends, colleagues, family members & relatives has become a common practice. It is now therefore become essential to understand the legal perspective on using memes and the ownership rights in such works.

*We claim no copyright rights in the above image. It has been used for representational purposes only.

A meme is protected under the Indian Copyrights Act, 1957 falling under the ambit of "artistic works" provided under section 2(c) which includes paintings, sculptures, drawings (including diagrams, maps, charts), engravings, photographs, works of architecture and works of artistic craftsmanship. As the provision also clarifies inclusion of photographs (images) for protection under 'artistic works', such a work when copied or reproduced, without any authorization, may amount to infringement and attract section 2 (m) (i) of the Copyright Act which defines "infringing copy". Memes may either be created by using photographs or videos that are available in the public domain making them merely derivative works that generate from existing copyright material, or may have been created by the “memer” using pictures belonging to him/ her. It is the latter which has the possibility of resulting in an infringement suit and depends on the veracity of the images used in the making of the meme. Therefore, a true owner of a meme can always call upon the infringer to restrain usage of the meme and/or to pay damages, if their work is used without their consent for commercial purposes. However, despite taking all necessary precautions, there exists a possibility that an individual may end up infringing the rights of the owner. Here, it is the doctrine of ‘fair dealing’ that comes into play. This particular doctrine is an exception to the copyright law that protects an original work. Section 52 (1) of the Copyrights Act provides certain acts or works that cannot be constituted as copyright infringement, which includes artistic, literary, dramatic or musical work. In the case of Civic Chandran v. Ammini Amma [1996 PTR 142], the Kerala High Court substantiated, the fact that parody and satire, being copies of the original work for criticizing, do not count as illegitimate use of the original work and thus qualify as “fair dealing with the work”.

Determination as to whether or not a meme would qualify under ‘fair dealing’ would be subject to the following:

Memes are generally considered to be “recreational activities” and provide for comic relief while expressing one’s ideas. Copyright infringement cases broadly deal with situations involving commercial benefit as opposed to recreational purposes. On the other hand, some social media accounts have derived economic benefits from these activities. In such cases, possible situation of infringement may be taken into account if proper permissions are not sought.

A foremost criterion in the field of copyright is the existence of the ‘artistic works’ in public domain. If the work in question has been available in the public domain for a very long time, and the memer has borrowed the same for the purpose of entertainment, he may take up the defense under the doctrine of fair usage.

Making use of insignificant portions or stills from a published, yet copyrighted work may not amount to infringement under the copyright laws. There also exists a plethora of stock photographs and templates available for public use which would not amount to infringement if used for the purpose of meme.

*We claim no copyright rights in the above image. It has been used for representational purposes only.

Commercial benefit was never the aim of memes. Despite this, with time, business entities and bloggers have begun including memes to publicize their content and gain maximum advertisement benefits. Hence, permission from the owner of the original right becomes important before releasing it in the public domain to avoid an instance of infringement.

While the doctrine of fair usage has its advantages in the publication of memes, there are situations where memes may end up becoming a matter of concern. If there has been violation of fundamental rights by way of memes, the memer is not permitted to use the defence of fair use. For instance, in the infamous incident of creation of meme using a face cut-out of Mamta Banerjee and adding it to the Cannes outfit worn by Priyanka Chopra was seen to be such an instance and directions were issues for removal of the meme alongside an apology letter by the creator.

The case of Warner Bros shows a situation of violation of rights wherein the creators of two of the internet's well-known cat memes Charles Schmidt and Christopher Orlando Torres sued Warner Brothers for copyright and trademark infringement based on images of Nyan Cat (created by Torres) and Keyboard Cat (created by Schmidt) which appeared in the video game Scribblenauts for using them without permission. Warner Bros. had to pay a compensation of $100 million.

*We claim no copyright rights in the above image. It has been used for representational purposes only.

Therefore, it is advisable for young creators to seek proper approvals from the owners of the work prior to utilizing the same. Creation of memes for recreation and amusement purposes is fair but in case the meme is utilized with any commercial intent, the member should obtain necessary consents as well as licenses from the copyright owners of the works involved in order to avoid facing any legal liability.