Memes as Modern Language - Navigating the Complex Waters of Copyright in the Digital Age

Saanya Vashishtha,

Jindal Global Law School  

Introduction

Internet meme, once coined by Robert Dawkin, as “an idea, behaviour, or style that spreads from person to person within a culture” has a slightly transformed meaning in today’s day and age. Internet memes presently can be defined as an image, video or GIF which has been creatively altered through the inclusion of a creative text on it. Meme, thus, can be defined under the head of artistic works.[i] While copyright is an exclusive protection provided for original work created in fixed tangible medium, it shall only be provided when the work is not excluded from protection on the ground of infringement of public policy. Thus, it becomes important for us to ask this critical question that in this evolving digital landscape wherein the memes have risen to prominence as a dominant form of communication, captivating diverse audiences, whether the memes should be copyrightable and if so to what extent should this be copyrightable?

Looking at Internet memes through the Creator’s perspective

Memes, once just internet jokes, have evolved into significant cultural markers, reflecting societal sentiments, trends, and even political stances. Their widespread impact on the public underscores the need for a serious discussion on their copyrightability. For a work to be protected by copyright, it needs to fulfil the necessary conditions for the work to fall under one of the categories of protected works under the Copyright Act. Additionally, the work needs to be recorded in material form and must be original.[ii] In the present case, clearly the first two conditions are met satisfactorily. However, the third condition of the internet meme being original is debatable. While, behind every meme there is an original piece of content, often a result of someone's creativity, effort, or a spontaneous moment captured. It remains to be seen the amount of creativity that goes into it and the questions further raised in cases wherein the subject matter has itself been taken from a copyrightable source. When these memes gain popularity without the original creator's consent, it infringes upon their economic rights. For instance, viral memes can generate substantial advertising revenue on platforms like YouTube, X, Instagram, etc. This leads to the third parties making profit from the content that they didn't create. In addition to this, Copyright law acknowledges creators' rights to object to distortions of their work that might tarnish their reputation. Some memes can misrepresent the original content, potentially harming the creator's image.  By copyrighting memes, we not only safeguard creators' rights but also encourage meme creators to be more responsible, fostering a more ethical internet culture. Moreover, in an age rife with misinformation, copyrighting memes provides a framework for platforms to combat misleading content. At its core, copyrighting of memes balances the freedom of expression with intellectual property rights, promoting respect and responsibility in the digital realm.

Looking at Internet memes as Language of communication

The principle underpinning copyright legislation is to provide the authors with a mechanism to safeguard their original works. This legal framework serves as a form of assurance, ensuring that creators are remunerated appropriately for their contributions.

However, in the case of internet memes, there appears to be a discord between the foundational rationale of copyright laws and their applicability to such digital property. Memes, by their very nature, do not serve as substitutes for original content. On the contrary, a widely circulated meme might increase the demand for the original content from which it is derived.

When an internet user who repurposes copyrighted material into a meme, they are not infringing upon the potential profits of the original creator. This is so because the foundation of the meme culture is built upon the strong pillar of free sharing, wherein neither the original creator nor the consumer aim at participating in a financial transaction. Consequently, the revenue stream that copyright legislation seeks to safeguard is non-existent in the context of memes.

Furthermore, the unpredictability associated with a work turning into a meme puts forth a unique situation in this case. While an author might have projections regarding the book sales or adaptations into other media, projection of a work's virality as a meme is extremely difficult considering that it is dependent on public reception of that particular work which again is unpredictable considering the various different factors like popularity, timing, recognition not only by the public at large but of that original meme creator and shared. The identity of memes is intrinsically linked to their widespread recognition, not merely their inception.

Memes though have the capacity of conveying the information succinctly. However, an overzealous protection of memes, can obstruct the free flow of information which shall further hit at the basic foundation of memes and shall not only impact the meme culture but also escalate the search costs for the end consumer.

In case the traditional copyright laws are stringently applied to memes, it could potentially stop the free flow of information which would then impact, the virality and the economics of this profession and might endanger the creativity of not only the content creators but the whole population. Further, the content creation shall also take a hit due to the legal wall that might be built if in case the copyright laws are implemented since the ordinary population would not know the legal know how of things and might as well end up attracting punishments in their lack of awareness.

Analysis

While it is possible for the memes to be protected under copyright as artistic works under section 2 (c) of the copyright act[iii] with varying threshold of originality as was also held in the case of Associated Publishers v Bashym[iv]  wherein the court adjudged that the portrait of Mahatma Gandhi which was formed through amalgamation of two different photographs would be protected under copyright only if the result produced is a result different from original portrait. However, I believe analysing the internet memes through an interdisciplinary lens that protecting memes under copyright shall not be beneficial. This is so because memes are not only internet jokes but have become a form of societal commentary which also help in cultural shifts, societal moods and shaping the public opinion. Thus, they also bring in various fundamental provisions from the constitution like Article 19 (1) (a)[v] that is the freedom of speech and expression. Furthermore, from an economic standpoint, I believe that any restriction on meme generation shall not only lead to a staggering downfall in the economic supply chain in this area but also lead to a downfall in the indirect benefits it brought with the widespread sharing of memes in terms of marketing, publicity, etc. Looking at it through a political lens one can see that memes act as a tool for advocacy and political participation by people and in case restrictions are put it shall lead to a decline in the same.

Conclusion

Copyrightability of memes puts us at crossroads where one road points towards the right to speech and expression and the other points towards the right of the original writer to copyright the meme and their right to consent. The fundamental right of speech and expression takes the forefront and analysing the situation through an interdisciplinary lens showcases the power of memes as modern language. Thus, it becomes significantly important that the free flow of meme sharing should not be restricted.

References

[i] Gupta, D. (2023) Laugh out loud, legally: Copyright considerations in memes, Lexology. Available at:

https://www.lexology.com/library/detail.aspx?g=c5ab7083-ee83-4b20-bda8-60cd4b4bf16c (Accessed: 24 September 2023).

[ii] Suman, Shubhank, "Analysis of memes and copyright infringement", Ipleaders, December 2021.

[iii] S 2 (c), Copyright Act 1957.

[iv] Associated Publishers (Madras) Ltd. v. K. Bashyam alias ‘Arya’ & Another [1962] 1 Mad LJ 258

[v] Article 19 (1) (a), Constitution of India 1950.