In 2005, Matt Furie created the now well known ‘Pepe the Frog’ cartoon. Completely unintentionally , it went on to become an immensely popular internet meme ten years later, especially in politically extremist circles. Aggrieved by the misuse of his beloved cartoon, he initiated and won several copyright infringement cases. Pepe, being a cartoon, came under the definition of an ‘artistic work’ and was capable of protection under copyright law. The memes that we usually come across on the internet are a bit different, as they do not take quite as much effort as drawing an original cartoon. Generally, the meme creator (or ‘memer’) uses a popular image (the meme template) and adds a layer of text to convey humor or satire. The really popular ones then get shared widely on social media, with people making their own iterations of the same to suit their desired context. The copyrightability, and enforcement thereof, of such types of memes is far more difficult than a cartoon frog. Firstly, there is the issue of whether memes are ‘original’ enough to attract copyright protection in the first place. Secondly, even assuming such materials are copyrightable, its enforcement is virtually impossible given the anonymity the internet offers to potential infringers. This article will analyse whether ‘memes’ are capable of legal protection under India’s Copyright regime, issues related to enforcement, and defenses available under Copyright law vis-à-vis memes.
Are Memes Copyrightable?
The first question that needs attention is what type of copyrightable material would a ‘meme’ fall under. On a perusal of Section 2(c) of the Copyright Act, 1957 (“Act”), memes are most likely capable of being protected as ‘artistic works’. Section 13(1)(a) of the Act confers copyright protection to original artistic works. As discussed previously, the creation of a meme is usually a very low effort endeavor. Anyone can find an image on the internet and add a layer of text to create a meme. Does this make it an original work? Probably not. The standard of originality is exhaustively delineated in EBC v DB Modak. It is not sufficient for the output to be a mere product of labour and capital; there must be a certain level of creative judgment and skill involved. In case of a derivative work, the difference between the original work and its subsequent iteration must be substantial and not trivial. Take the meme below as an example.
This meme adopts a very popular template, which is taken from the music video of the song ‘Hotline Bling’. It is used to show the disapproval of one thing, and the approval of another. Making this meme requires a minimal level of creativity and skill. Merely adding text to a pre-existing image is clearly not sufficient to meet the threshold of ‘originality’. In fact, the meme maker is likely infringing on the copyright that already subsists in the music video. Therefore, most popular memes are not capable of protection under copyright law. Any meme claiming such protection will have to meet the standard of originality.
Even assuming certain memes do qualify for copyright protection, its enforcement remains uncertain. Memes spread across the internet extensively and rapidly, where ascertaining the true identities of all such infringers is virtually impossible over the internet. Where the meme is a derivative of an already subsisting work, there are certain defenses under copyright law that can be availed. The doctrine of ‘fair use’ has been enshrined in Section 52(1) of the Act. The Delhi High Court in India TV v Yashraj Films 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 fair to say that most memes are innocent, light- hearted comic devices devoid of any commercial character. Therefore, memes would be able to claim the defence of fair use in most instances. However, this is not always the case. Let us revisit ‘Pepe the Frog’. This innocent cartoon was misappropriated by extremist political circles, contrary to the intentions of its creator. As a consequence, its image was severely maligned in the media, something which would obviously have a negative impact on its potential commercial value. In this case, the defence of fair use may not be availed since this type of use violates the fourth factor. Unsurprisingly, Matt Furie was able to successfully sue certain companies for infringing his copyright. Furthermore, given the pervasiveness and popularity of memes, all of its uses are no longer non-commercial. Several large brands use memes to promote their products. For instance, the creators of Nyan Cat emerged victorious in an infringement lawsuit against Warner Bros, for using their creation in a video game without prior permission. It is also important to remember that authors possess certain moral rights in their work. These have been defined in Section 57 of the Act and prevent the users of copyrighted material from distorting the work in a way that is prejudicial to the honour and reputation of the author. This is particularly relevant in Matt Furie’s case where his creation was used to incite violence and spread hatred on numerous occasions.
Memes are popular because they offer comedic value in a way everyone can relate to. They are a simple vehicle of entertainment that can be molded to suit all contexts. They can be used for political satire, branding and marketing, or simply conveying family-friendly humor. From the discussion above, it is clear that IP rights of memes are a grey area. It is uncertain if most internet memes are capable of copyright protection, whereas they very likely infringe copyright of pre-existing works in most cases. Thus, it is important that memes continue to serve their purpose without infringing the moral and commercial rights of copyright owners. Meme makers should be vigilant of not making content that might malign the reputation of a copyright owner, and brands should take prior permission when they are using memes for marketing purposes.
He is a third-year law student from Jindal Global law School.