A recent study conducted by ‘We Are Social’ found that despite these slow speeds, Internet users in India spend almost 5 hours on the net every day, with 40% of that time spent on social media. Going by these statistics, Indian users roughly spend about 2 hours on social media and which platform they use will probably differ based of age, profession and purpose for use. So those of us who fit this description and spend most of those 2 hours on Facebook, would have come across several internet memes! It has been defined as a cultural item in the form of an image, video, phrase, etc., that is spread via the Internet and often altered in a creative or humorous way.

There are some images which have become extremely popular, for instance, the grumpy cat, doge, overly attached girlfriend and of course Alok Nath in India are repeatedly used with different catchphrases to express different ideas. Someone should’ve created these images in the first place for all of us to be using it and so does that mean that using an image to create a new meme will actually result in copyright infringement? And what happens if the creator of such a meme has a trademark registration for the photograph/image in the meme?

Copyright Law

In this article, I’d like to focus on the issues from the point of view of the Indian Law. There could be two arguments – firstly, that the creator of the meme has employer his own skill and labour in the creation of the meme and that should be rightfully his creation and the other being that, the crux of the meme is the image and the essence of the meme is being conveyed through the image, so the copyright vests with the person who owns the photograph.

The latter argument is more legally sound and a remedy is available to the owner of the copyright and as mandated by the law, registration of the copyright is not a pre-requisite to file a suit of infringement. So when people are repeatedly using the image to create different memes, the copyright owner may have his day in Court. It can also be argued that since it’s a parody, it would come under the ambit of ‘fair use’, however, the Copyright law in India does not specifically provide any remedy in the case of parodies.

And even if parody did come under the ambit of ‘fair use’, the question is whether an internet meme is actually an imitation or trivialization of the original work because in my opinion, it is a novel expression though it retains the theme of the image on the meme. For instance, if it’s an image that depicts an angry person, memes could be expressed in myriad ways based on this theme.

Trademark Law

Of all the internet memes, my personal favourite is the Grumpy Cat and I was quite surprised to know that they have registered trademarks in various classes from ‘Grumpy Cat’. On further research, I found that UltraPro also have applied for registration of the Doge because of its growing popularity on social media. At the outset, what are the implications? Would use these images on a meme make a person liable for trademark infringement? Since my focus is on the Indian law, let’s hypothetically assume that these marks are registered in India.

At the outset, using these marks on goods or services would be an infringement of the trademark. But what about use on social media? Section 29 of the Trade Marks Act states that a mark may be infringed by spoken use of those words as well as their visual representation. Going by this provision, using such images or even modifying these images for use on social media would result in trademark infringement. However, this provision is only in respect of registered trademarks and would not apply to unregistered marks. Therefore, a creator of a meme cannot sue for passing off because the rights under Section 26 are limited to only goods and services.

Other issues

There have been certain instances which have raised concerns regarding use of images in memes which go viral and that in turn causes emotional distress to these internet meme victims. Kelly Martin Broderick’s picture at an event in the University of Maryland was made into unpleasant memes and she has fought back against such practices on the internet. In another instance, the family of a down-syndrome boy whose picture was used on memes containing derogatory content has filed a suit claiming 18 million dollars as damages. One of the defendants in the suit is a radio station which also used the photograph of this boy in their memes.

Conclusion

Internet memes bring with them several legal and also social issues, therefore it is advisable that one treads with caution. However, if the Courts step in soon enough and disentangle the whole web of law surrounding internet memes, we will get some clarity on the matter. Until then, it’s advisable to think before you share because on the Internet, someone is always watching!

This article has been authored by Nikita, an IP Law practitioner.