NAVIGATING THE MEME: INTELLECTUAL PROPERTY RIGHTS UNRAVELED

(Published on VIPS LAW BLOG:

https://vipslawblog.wordpress.com/2023/10/20/navigating-the-meme-jungle-intellectual-pro
perty-rights-unraveled/)

Introduction

Ever since the inception of the Internet, we have lived beyond the real world. Although many
aspects of the ‘real’ world involve Intellectual Property Rights, the creations of the digital world
are often overlooked when we try to understand the know-how of Intellectual Property Rights. In
this era of digital expression, wherein each one of us has easy access to social media, ‘Memes’
have been around for ages. In fact, with how popular they are today ‘Memes’ have become the
very language of the internet. From ‘Grumpy Cat’ to ‘The Distracted Boyfriend’, these
humorous images capture the essence of a moment and spread like wildfire across the online
landscape. However, behind the chuckles, there exists a very complex web of Intellectual
Property Rights that the creators and meme enthusiasts must navigate. In this blog post, the
intricacies of these memes, the legal considerations surrounding their creation, sharing and their
potential monetisation will be explored. Furthermore, the question of whether you and I can be
held accountable for sharing a meme without any Intellectual Property rights over it will be
discussed.

What are memes and how did they come to be?

Although we have already somewhat discussed the existence of memes in today’s digital
landscape, we must have a clear idea about what memes are. Memes, in their simplest form, are
nothing but units of cultural information that spread rapidly through imitation. These can be in
the form of images, videos or even texts and are often humorous. Creators, fuelled by the internet
culture and the need to express shared experiences, contribute to the vast and ever-evolving
meme ecosystem.

Intellectual Property Rights for Memes

The root of all meme-related legal issues lies in Intellectual Property Rights, primarily copyright
law. A copyright is a legal right that grants the creator of an original work exclusive control over
its use and distribution, usually for a limited time, with the intention of encouraging the creation
of new and innovative works. In the context of memes, they fall under the purview of copyright
if they contain original content that meets the criteria for copyright protection. This includes
original graphics, text, or other creative elements. When an individual creates a meme, they
automatically hold the copyright to that creation. This copyright gives them the exclusive right to
reproduce, distribute and display their work. As simple as that might seem, the internet steps in
to create a lot of complexities surrounding this. Memes are inherently built upon the “remix
culture”, wherein the content is continuously repurposed and transformed. This presents a
challenge when trying to enforce copyright claims, as memes more often than not involve
elements borrowed from other copyrighted works. Determining when a meme infringes on
someone else’s copyright is a murky territory that the legal system still grapples with. Then
again, the situation isn’t entirely hopeless either. The concept of Fair use doctrine comes in
clutch to somewhat help us navigate through these complexities. Fair use is a legal doctrine that
allows for the use of copyrighted material under certain circumstances without the need for
permission from (or payment to) the copyright holder. In the realm of memes, Fair use is a
critical defense that provides a delicate balance between the creator’s rights and the freedom of
expression which is inherent to the meme culture. But for a meme to qualify for the fair use
doctrine, it must meet specific criteria, including the purpose and character of the use, the nature
of the copyrighted work, the amount and substantiality of the portion used upon the market and
the effect of such use upon the market. Determining whether a meme falls within the criteria of
‘Fair Use’ is subjective, and often requires legal scrutiny to settle disputes.

Monetisation of Memes

As memes gain popularity, the possibility and desirability of monetisation arise. Creators may
seek to capitalize through merchandise, licensing agreements or partnerships. However, this
journey into the commercial realm demands a heightened awareness of intellectual property
rights. Securing licensing agreements becomes crucial when a meme moves from personal
expression to a commodity. While allowing for its commercial use, the creators need to negotiate
the terms that protect their Intellectual Property Rights. This evolution of memes from grassroots
internet culture to potential sources of income today highlights an urgent need for a nuanced
approach to intellectual property rights in the digital age.

Enforcement Challenges

The enforcement of these intellectual property rights in today’s digital age presents a unique and
complex set of challenges. Memes spread across platforms in an instant, making it very difficult
to control their distribution. Further, the decentralized nature of the internet combined with the
anonymity it provides adds a new layer of complexity in identifying and pursuing copyright
infringers.

Social Media plays a pivotal role in meme distribution but the policies of various social media
platforms on the enforcement of intellectual property rights vary. While some social media
platforms actively support the copyright holders, others struggle to keep up with the constant
influx of user-generated content. This inconsistency in the enforcement of intellectual property
rights further underscores the need for a comprehensive and adaptable legal framework.
India and the Global Perspective

In the United States, memes are generally considered a form of free expression and copyright
protection may not apply if their use is deemed transformative. However, this isn’t a universal
rule and legal battles over meme copyrights are inevitable. In Europe, the situation is more
nuanced. Although memes might be protected under copyright law, exceptions for parody and
satire may apply. The European Union’s copyright directive has added another layer of
complexity by introducing stricter regulations on online platforms, affecting the creation and
sharing of memes. Furthermore, the EU General Data Protection Regulation (GDPR) enacted to
protect individuals’ privacy and personal data introduced some newfound complexities in this
issue. Memes often have to rely on relatable and shareable content, and this content may
sometimes end up involving personal data.

GDPR mandates obtaining explicit consent for processing personal data. Memes that use images
or information about individuals without consent may run afoul of these GDPR requirements.
Furthermore, individuals have the right to request their data be deleted or moved. Memes that
include personal information may inadvertently violate these rights.

Lastly, India, with its burgeoning internet culture is not immune to this meme phenomenon
either. The legal landscape in India regarding memes and IPR is in its evolutionary stage. The
Copyright Act of 1957 governs the protection of original literary, artistic and dramatic works.
But applying this to memes can be very challenging due to their derivative nature.

Indian courts have yet to establish clear precedents on meme-related copyright disputes.
However, there is a recognition of the importance of balancing copyright protection with
freedom of expression, which is particularly relevant to the dynamic nature of memes.

Conclusion

As memes continue to shape our online conversations and cultural narratives, sooner or later the
legal landscape surrounding their creation and distribution is bound to evolve. The intersection of
memes and intellectual property rights is a fascinating and upcoming area of deliberation and
discussion. As memes continue to shape online communication and culture, it is crucial to strike
a delicate balance between protecting creators’ intellectual property rights while also fostering
the collaborative spirit of meme culture. Navigating this landscape requires a profound
understanding of copyright laws, ‘fair use’ principles, and the ever-changing nature of digital
content creation. As we move forward in the legal system, the content creators or the ‘memers’
as the internet likes to call them and the other internet users must all work together to ensure that
memes remain a vibrant form of expression while also respecting the rights of those who bring
them to life.