Social media being a platform to share information, ideas, personal messages, and other content has evolved over time by virtue of the human instinct to communicate. In the recent times, it has become a necessity in one’s life, as social media grew from direct electronic information exchange platform, to virtual gathering place, to a vital marketing tool, with trends changing instantaneously. One thing that has remained static in social media, over all these decades is the consumption of memes and the main reason behind it is that memes help in shaping ideas and opinions of general public.
Memes are prolifically used across all social media platforms with a humorous undertone, giving present situation, a completely new funny context. This new channel of expression, used by internet users across the world, are basically excerpts from already existing images, songs and videos, which are superimposed with text, that consequently hold in itself, copyrighted artistic, musical, literary and cinematographic works. These memes as it is meant to be, is in turn shared and copied leading to more circulation of copyrighted works. As per copyright law, the copyright owner has the exclusive right to make derivations of their original work and memes being derived from such already existing works are at risk of infringing copyright. Hence, there is a fine line between creating something funny and violating other’s rights when it comes to meme creation.
The question of legality of memes, often derived from other copyrighted works is a much-debated topic nowadays, particularly when, apart from general public, institutions that are involved in administration of law and order are using it as a tool to create awareness. Owing to this tremendous reputation, wide usage and non-commercial purposes for which memes are often created, it is not imposed with the title of being improper or unauthorised use and is mostly considered to be protected under the ambit of fair use doctrine.
The legitimate defence of fair use/dealing under Copyright law allows third parties to exploit the work in a limited way without the authorization of the copyright owner, once it is put to test under the following factors:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for, or value of, the copyrighted work.
In cases of memes which predominantly comprise of pictures/photographs or video extracts, that involve third party rights, the defence of fair use would stand depending upon the amount and substantiality of the portion involved in the meme creation, the nature of copyrighted work and the purpose and character of such use. On the other hand, if memes are created, distributed for sales and marketed by a Corporate there is a commercial element involved which makes it different from the memes created by individuals for fun or to propagate an idea, making it fall out of the ambit of defence of fair use doctrine as this unauthorised use is a clear violation of the rights of owners of original works. Hence, the method for determining whether a meme infringes copyright of another differs from case to case.
It is pertinent to remember that memes originally created for entertainment purposes should be kept simply that way. It is always better to create a meme without violating intellectual property rights of others, if not what was created for fun would land one in legal trouble.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.