Author: Shusmita Kumari, Student of LLM at ILS Law College, Pune
Co-Author: Bhavya Pankaj, Student of LLM at ILS Law College, Pune
Have you ever come across the famous “distracted boyfriend” meme where a man walking with his partner was looking back at the other woman passing by? Even if you don’t follow the Instagram trend you might have come across this popular distracted boyfriend meme somewhere on the internet. This particular photo was taken by a photographer after creating this whole scenario, therefore, this will be said to be an original work with a creative idea and not a factual expression. what is a factual expression you may ask? Works that are factual and less creative can be called factual expressions. This kind of work are more susceptible than works that are highly creative and innovative. This help to keep pace with the general principle of copyright which protects the expression rather than ideas or facts. Considering the point that the whole scene was created for a humorous purpose is in itself a work of creativity.
In recent times we have seen a tremendous increase in meme culture on the internet. The fact that every time we go online on any social media we will see, share or post memes. It won’t be wrong by saying that memes contain subliminal messages which are sometimes funny, sometimes humorous, sometimes it has the mundane reality or any censorious comments on society/politics. The term MEME was first used in the book, selfish gene, by an evolutionary biologist, Richard Dawkins in 1976. He defines a meme as “units of a cultural meaning, such as a value or an idea, which is passed from one generation to another”. Contemporary understanding for memes would be an illustration, picture or movies fragment that is transited with humorous text.
Nevertheless, the major apprehension over here is how aware people are when it comes to the copyrights and fair use of the meme. And how to protect their copyrights?
It is quite apparent that other than people from legal backgrounds have some knowledge about copyright and doctrine of fair use where if anybody uses original work of a creator and does not transform or modify the same and uses the substantial part of the original work of the creator will be deemed to be infringement under copyright law. Many millennials and the gen-z often create a social media account to share memes in order to gain followers but little that they know, such action consider as an infringement of copyright of original work of meme creator. Furthermore, if “x” uses a meme that was posted by “y” in his own social media account then that is a derivative work of art in which an original picture has been transformed by a text and expression, can be considered safe under the doctrine of fair use.