Every day, we open our social media pages, we get amused by interesting memes, and we cannot stop admiring the wit of the meme creators (Members). We enjoy those memes and share the same among our friends and circles. Memes are an exciting medium to convey messages. Hence, it is tempting for a business entity to use a Meme to promote its goods and services. It helps a brand immediately connect with its target audience (especially Millennials & Gen-Z). For example, Zomato has used this funny Meme for promotion.
So, if you are a business house, can you freely use a Meme to promote your goods/service? Can you base your advertisement on a popular Meme (e.g. Shark Tank Memes)? Do you mandatorily need permission, or you can go ahead without any consent? Whom should you approach for the license? Let’s understand the legality behind this.
By Meme, we understand using an image, video, text, excerpt etc., copied from existing work and humorously using the same. An image/video/still/excerpt of audio/visual content is also a copyrighted work protected under Copyright Act, 1957. It comes under the domain of Artistic Work defined under Section 2 (c) of the Copyright work. Hence, the film owner is also the copyright owner of the images/stills of that film.
Therefore, legally we should take permission from the copyright owner (in the form of a license) to use a particular image as a meme. Now, we can see our social media is full of memes. Does each Memer approach the copyright owner for permission? Most probably, the answer is
negative. However, it is pertinent to note most of these memes are used entirely in a new light (from the original work) and shared for humour and entertainment. Such use, in fact, promotes the original work and does not compete with the same. Therefore, a Memer (in such a case) can exercise the defence of Fair Use. We need to understand a fair use defence is more concrete when a meme is created for non-commercial purposes.
However, this position slightly changes when a business entity uses an image/artistic work as a meme to promote its goods/services without permission from the copyright owner. Here, the purpose of the use is not just entertainment but also to promote goods/services and generate revenue. Hence, it is advisable to take permission from the rights owner to avoid any legal complications. We also need to understand the fair use doctrine is a defence and not a right. This defence gets diluted when you use copyrighted work for commercial purposes without permission.
In India, we have not witnessed any case (at least a reported judgement) where the copyright owner has sued any other entity for creating and using a meme based on its copyrighted work. The chance of any such suit may be rare. But, we need to keep in mind that there is always a risk of the owner sending a legal notice, cease and desists notice (including the demand of compensation) and threatening legal action against the unauthorized commercial use of a copyrighted work meme.
Hence, requesting permission is the best way to go ahead. If you wish to use the famous ‘Raazi Meme’ for commercial purposes, you should approach Production House to request a limited license to use a particular image as Meme. In return, you can promise them a due picture credit or pay a license fee (as per your mutual understanding). It makes our position more legitimate and safe than directly going ahead and using the Meme.