As of 08/07/2020
It would not be wrong to state that memes are one of the most influential things to happen in this century. Take any social media platform and it is flooded with memes. Memes have transcended from more than just jokes. It has become a medium of expression for people, where everyone can talk about the things they want to with the aid of a popular illustration, video or movie. Richard Dawkins who coined this term ‘meme’ even claimed it to be the “cultural equivalent of physical inheritance”. But since memes take the aid of an already popular medium, the question arises whether they infringe upon the Intellectual Property Rights of the owner of the medium?
Different countries have different answers to this question depending upon their respective Copyright Laws. In the United States, the law favors the memer, if done rightly. The thing that protects the memes is ‘the fair use policy’. Fair use policy states the boundaries, conditions and scope in which a copyrighted material can be reused by others. There are 4 factors that need to be considered. First is the Purpose and character of the derivative work. It basically focuses on the divergence between the original content and the derivative content,i.e. meme here. The wider the divergence the safer the memer is. Second is the Nature of the Copyrighted Work. This basically distributes the work into two broader categories: Informational and Entertaining. The former has more lenient fair use implications as US Govt. promotes distribution of Informational content. The latter however has stricter laws. Third is the Amount of Copyrighted Work Used. This considers how much of the original content is being used. Fourth and final is the Effect on the market. Now this….this, ladies and gentlemen is the most crucial of them all. And perhaps the one that shifts the tide decisively in the favor of memers. This points to how the derived content affects the original one. This is where memes stand different. Unlike other cases, memes actually affect the original content in a positive way. The memes give free publicity to the original content and in many cases people come to know of the content because of the memes. Memes rarely compete against the original content but mostly for and with the original content.
Having stated the fair use policy that bats for memers, it wouldn’t be right to say that no meme violates the Copyright laws. Rather, it depends and differs from case to case. If the meme does not stand fairly in stated 4 factors, it might run into trouble. As for example, say the third factor that deals with the amount of work used. If the original content is a movie and a meme is made on a still from a movie, it passes the fair use test. However if the original content was a picture and then the meme is made on the picture, it wouldn’t pass the fair use test. Attention and care must be paid that how does the meme stand out in fair use policy. As long as that is covered, memes shouldn’t run into any trouble.