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Meme marketing and Copyright: With Great Power Comes Great Responsibilities

Article by Navantak Agrawal

With the spike in the usage of internet amongst the youth, the brands have adopted a paradigm shift in their methodology of advertisement. One such infamous way to transmit the brand presence is through meme marketing. Memes are basically a piece of work inculcated in photos and videos which incorporates a creative expression in a form of satirical or humorous context possessing a great capability of resurfacing over the internet. Brands actively advocate subterfuge by participating in meme trends to showcase their presence amongst the users. However, meme marketing and copyright does not go hand in hand, as the usage of a copyrighted material may attract a suit. One such example for the same is Grumpy cat suit over the unauthorized use of a copyrighted material, which ended up receiving a payout of $710,000 as damages.

The prominent question that arises here is to find out the usage of the portion of the work which is substantially reproduced. If the fundamental part of the craftsman’s unique vision is duplicated, the same falls under copyright infringement. Generally, memes get protection under the ambit of “artistic works” under section 2(c) of the Copyrights Act, 1957. However, an infringement occurs when the same has been shared without the prior consent of the copyright holder which falls as an “infringing copy” under Section 2(m)(i) of the Copyright Act, 1957. In certain cases, it is difficult to trace the original owner of the work. However, in instances where the creator has created an original artistic work without borrowing any material, in such a case sharing that particular meme would not lead to copyright infringement because that would be his original content.

To secure protection from copyright infringement, the doctrine of fair use comes into play. The Copyright Act under Section 52(1)(a) enlists certain parameters to determine the use as fair. The Delhi High Court in India TV v Yashraj Films[1] reiterated the four factors to determine fair use, namely- (i) the purpose and the character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work.

It is pertinent to mention that the owner of the original copyrighted work may file an infringement lawsuit against the meme creator, if the same is used for the commercial aspect. However, if a company makes a meme without stealing any original artistic creations, then third parties’ distribution of that meme even for the sake of profit, does not deemed to violate anyone’s copyright. However, to maintain the protection of personal rights of a person amounting to defamation, various countries have enacted stringent laws over the same. To safeguard the same, India has enacted The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021” which empowers the intermediaries such as Facebook, Instagram etc., to block the access of any unlawful information within 36 hours upon an order from the court, or the government.

Axiomatically, owners of copyrighted content are permitted to file claims against users who create memes for the commercial purpose, the nuances of the issue will continue to be debated because there are no prior rulings on this subject in Indian courts. Hence, the brands are vested with great responsibilities to take due diligence before indulging into this grey area.

[1] 2013 (53) PTC 586 (Del)