Any random person can make use of memes, especially image-memes. We make use of them since they tend to pass across our messages, in a very short yet effective manner. It is easily presumable in the age of the internet to imagine that a meme has no proprietor, especailly if it is viral, such that tracing its root becomes tiresome, and frankly, almost unnecessary. What then happens when a meme becomes a matter of dispute?
Image-memes (pronounced “meem”) are associated with an image or video which portrays a particular concept or idea and is spread through social media platforms on the internet. By this Logic, it is important to understand that a meme does not have to be strictly an image which simply passes a message, this would limit the scope of its applicability.
The laws which govern intellectual property in Nigeria are the Copyright Act, The Patent and Designs Act as well as the Trademark Act. For the purpose of this article, the Copyright Act is our area of concern. The extent of protection and applicability of copyright laws transcend the shores of Nigeria.
According to Wikipedia as at 30th of May 2020, intellectual property is a category of property which includes intangible creations of the human intellect. Intellectual properties include images, pictures and inventions that have been copyrighted.
The use of memes on the internet is rife and certainly makes discussions, chats more interesting; memes pass messages in short and precise ways, hence, their popularity.
There is however the real possibility that the vast majority of individuals have repeatedly violated the right of the owners of those images, where they have been copyrighted.
How is this so? Some images of popular icons for instance, who may either be footballers or artists may have been copyrighted, and the unauthorized use of these images may amount to infringement if the consent of the owner is not sought before using them to create parodies or memes.
In other words; an image which has been copyrighted by Lee, if cropped by Bee, and even goes further to inscribe captions on it, thereby turning it into a meme and posts on social media, without permission of proprietor may be said to have committed an offence and is liable for infringement.
It is normal that the original content creator, meme creator, and subject of the image/meme may all have conflicting ideas about the value of the meme (especially on socail media platforms when individuals argue about the first to use memes), this may lead to legal disputes. Be aware however, that your posted memes may sometimes be taken down due to external factors such as a cease-and-desist letter from copyright holders who enforce their rights through local and foreign laws such as the Digital Millennium Copyright Act (DMCA).
It must be noted however that copyright laws exists within the ambits of fair usage. That is; if Lee makes fair usage of an image (turning it into a meme) without seeking the permission Bee who is the owner, He may still not be liable.
The Copyright Act provides the guideline to determine fair usage;
Contextually, if the use of the image turned meme has or had an adverse effect on the copyright owner, fair usage will not avail the originator of the said meme.
If the image of Lee which has been copyrighted is used in a derogatory manner, fair usage will not avail Bee.
When image-memes are used for commercial purposes without permission for advertisement purposes (e.g, to advertise a cake), the proprietor may sue for infringement.
In all these instances, it is also trite to note that copyright owners in these memes may not file charges even if it is manifestly clear that their image-memes are being used without their consent to the extent the infringers generate revenues. Sometimes, the creators of memes refuse to enforce their rights against people who have violated their copyright images, including memes because it profits them with maximum exposure on social media; this is however at the discretion of the proprietor.
Popular company, “Getty Images” has been known to send letters demanding license fees to be paid for the unauthorized use of images obtained from their website. Most times, copyrights violators receive a take-down letter demanding the originator of these memes to take down before or so soon after they have become rife.
Image-memes are easy to create and spread. If Bee must create one, due diligence should be made to ascertain the source of the image and discover whether or not it is subject to copyright. Bee may better still make use of watermarked images without cropping out the watermark of the owner as a potential safeguard against infringement.This is the position of THE LAW AS IT IS.
The author is a legal practitioner in Nigeria