The Viewpoint- Game of Thrones Memes: Potential Copyright Infringement or Fair Use?

Bar & Bench September 25 2017
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As Season 7 of Game of Thrones recently came to an end, a fresh flush of memes took over the internet, yet again.

The memes inspired by the epic saga have been a worldwide phenomenon since 2011. These memes, while mainly used for personal humor and entertainment, have nevertheless gained commercial importance as well. Sections of the entertainment industry like the popular comic group All India Bakchod (AIB), have used these memes as their own content, to promote themselves and their economic interests. Game of Thrones memes have also been used in advertisements and on unofficial merchandise.

The images used in the Game of Thrones memes are the property of the producers of the epic series, as the bundle of rights that are guaranteed in a copyright encompass not only in the motion picture, but also every part of the production, of which its still images are a vital component.

In an internet meme, one is essentially using someone else’s work for his purpose, without the permission of the owner of the copyright of the original work. This would, in most circumstances, be a clear case of infringement. In the case of memes however, the same may not be entirely accurate, as the purpose of creating memes varies. Nevertheless, only those memes that are created for the purpose of fair dealing may be included in the ambit of the fair use clause of the Indian Copyright Act.

Thus far, the issue of memes as being an infringement of copyright remains to be agitated in Indian Courts. An American Court in Campbell v. Accuff – Rose Music  laid down the Four Factor Test in relation to fair use. In addition to this, the US legal jurisprudence sheds some light as to the fair use of memes.

§ 107 of the US Copyright Act enumerates those acts which shall be constituted as not infringing copyright. This provision, unlike its Indian counterpart, is inclusive in nature. Apart from detailing the exceptions, the provision also specifies a four-factor test to be used as a yardstick while considering the defense of fair use:

"(1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work."

These factors are subjective in nature; the degree of application changes on a case to case basis. In The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House, the Delhi High Court elaborated on the four-factor test for fair use and emphasized that the factors cannot be used in isolation but have to be used collectively and holistically to assess whether the doctrine of fair use would apply.

Further, the Court added that the fourth factor should not be limited to assessing the damage caused to the copyright holder in the market but should also evaluate the adverse impact on potential markets.

The most recent development in the Indian judiciary in the domain of fair use has been in the DU Photocopying Case, where the ambit of Section 52(1)(a) has been substantially widened, thus lowering the threshold which an infringing work needs to fulfil to come under the protection of fair use.

In order to apply the law of fair use effectively to memes, the memes must be categorised according to different styles of the meme. Accordingly, memes can be broadly divided into four categories, namely, cinematographic stills, rage comic memes, personal photographs and original works. Some of these categories are protected under the fair use doctrine, while the others do not meet the prerequisites.

The Game of Thrones memes lie mainly under the categories of cinematographic stills and original works. In the case of cinematographic stills, one part of the entire end product is taken out of context and used merely on face value. The still is then superimposed with text of a particular nature to convey a distinctive idea.

An illustration of this category would be the “Brace Yourself” meme, picturing Ned Stark from ‘Game of Thrones’ holding a sword along with the words “Brace Yourself” on the upper portion of the meme. The lower part has a line that usually conveys the expected, usually exaggerated, event.

Typically, such a meme comes under fair use protection, as the volume of copied work is minuscule and this does not affect the potential market of the copyright holder at all. Therefore, it can be assumed that such memes that are solely for personal use come under the ambit of fair use and therefore can be widely circulated on the internet.

In the case of original memes, a character from Game of Thrones has been superimposed on a new background, usually with products that are out of context but lead to a humorous situation due to the interaction of the character and the product. A wide variety of such memes have been created by AIB.

Such use is against the spirit of the fair use doctrine as it is used extensively to further the brand image and commercial interests of the group, rather than promote dissemination of information. From the nature of the memes created by the group, it is evident that the primary aim of creating and popularizing these memes is to advertise the products of companies that have endorsed AIB.

Further, the very fact that such memes undermine the producers’ copyright by affecting the potential market for the show leads to an infringement that cannot be protected by fair use.

Despite endless debates on this issue, no conclusive observation can be made on the legality of the Game of Thrones memes until there is a judgement by a precedent court of the country on this subject. However, from the existing jurisprudence, we can gather that a judgement will not cover the entirety of memes but will assess each meme individually on the basis of the four factor test.

It can be expected that the memes that merely have text written around the cinematographic still will be protected by fair use. However, memes that use a character or situation to market another product would be considered as infringing, as they are often created for commercial gain and not for individual enjoyment or information dissemination.

Meghna Mishra is a Partner and Anusuya Nigam is a Principal Associate at Karanjawala & Co.