Memes have become an integral part of political campaign strategies globally. They are used for engaging younger voters and spreading messages rapidly, but the use of copyrighted memes in politics may constitute copyright infringement. The U.S. Court of Appeals ruled in Griner v. King that using copyrighted memes for political purposes doesn’t always qualify for the fair use exception. The case involved Laney Griner's “success kid” meme, which the “King for Congress” committee used without Griner’s permission. The court held that the committee’s use was commercial as it was intended for campaign fundraising, and the meme was not significantly altered from the original. Hence, the meme didn’t meet the requirements for fair use and was deemed copyright infringement. While memes play a key role in political campaigns, they can face legal challenges due to copyright laws. In India, similar issues may arise, as India's “fair dealing” exception has been influenced by the U.S. “fair use” principles.
Recently, the United States Court of Appeals in the case of Griner v. King[1] held that using copyrighted memes for political purposes may not always qualify as fair use and can lead to copyright infringement.[2] Memes are a popular form of online content, often infused with humor, satire, or parody, and widely shared across social media platforms. They usually involve modified images or snippets from existing media, like TV shows, movies, or even personal recordings. Thus memes can be classified as creative works that are copyrightable. US courts have previously recognized that the use of copyrighted works for political ads is protected as free speech by the First Amendment to the U.S. Constitution.[3] However, this judgment limits this right, holding that the use of memes for political purposes may not be permitted if it amounts to copyright infringement.
The lawsuit emerged out of a copyright infringement claim by Laney Griner, owner of the copyright of the “success kid” meme. She alleged that the “King for Congress” committee used the meme without her permission. The meme was used by this committee to solicit donations for the U.S. representative, Steven Arnold King’s campaign. The District Court for the Northern District of Iowa-Western found the committee liable for copyright infringement. Subsequently, the committee appealed the decision before the Court of Appeals for the Eighth Circuit. The committee argued that their use of the meme was protected under the fair use exception. The fair use exception allows the use of copyrighted material, without permission from the owner. Fair use is often assessed on the basis of four factors, a key factor being the character and purpose of the use, such as whether it is for educational or commercial purposes.[4] The Court of Appeals agreed with the findings of the District Court and held that the fair use exception would not apply. The Court stated that the King campaign’s meme prominently featured a request for donations with the phrase “FUND OUR MEMES!!!”, suggesting a commercial motive.[5] They held that since the original meme and the infringing copy shared a similar purpose, but the latter was of a commercial nature, a case for fair use could not be made.
Memes have become an integral part of political campaign strategies globally[6], especially used for engaging younger voters and spreading messages rapidly. They have become a powerful tool in political discourse in India as well. For example, after the Communist Party of India-Marxist (CPI(M)) lost in the Tripura state elections a meme of a coffin with 'Tripura' written on it was shared by the party leaders.[7]
Memes are also used to express dissent, and to criticize political figures, highlighting their failures or controversial actions. A notable example is the memes mocking the seemingly “dynastic” succession within the DMK party.[8]
Consequently, it may not be long before Indian courts must determine whether the unauthorized use of copyrighted memes for political purposes constitutes infringement. Memes can be protected in the form of photographs or drawings under Section 13 of the Indian Copyright Act, 1957. Thus, sharing copyrighted memes without permission from the owner may amount to infringement under Indian law.[9] India too has its own version of the fair use exception known as fair dealing.[10]
The fair dealing exception in India is far narrower than the fair use exception available in the U.S. It permits the use of copyrighted material for limited purposes such as personal use, research, criticism, or news reporting. If copyrighted memes used in political campaigns don't meet the specific criteria for fair dealing, there could be liability for copyright infringement. Just as in the U.S.[11] Indian courts[12] too take into account certain factors while assessing the applicability of the fair dealing exception which are:
a) the quantum and value of the matter copied,
b) the purpose for which it is used, and
c) the likelihood of competition between the two works.
A political meme might meet some fair dealing or fair use requirements, but based on the above factors, it still may not qualify for the exception. For instance, in the King for Congress meme, the quantum and value of the copied work were significant, as hardly any changes were made to the original meme. The meme was also used for a similar commercial purpose. Both of these factors would weigh against the application of the fair dealing exception.
Given that Indian courts have often drawn inspiration from U.S. fair use jurisprudence, it is likely that the decision in Griner v. King may influence their approach in a similar lawsuit. In addition, the scope of fair dealing under Indian copyright law may further skew the suit in favor of the copyright owner. Copyright holders in India may become more vigilant and pursue legal action against the unauthorized use of their content in political campaigns. This heightened scrutiny could restrict the use of memes as a political messaging tool, pushing campaigns to rely on original content.
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[1] Griner v. King, 104 F.4th 1, 2024 U.S. App. LEXIS 13879, 2024 U.S.P.Q.2D (BNA) 1033, 2024 WL 2873259 (8th Cir. Iowa June 7, 2024)
[2] Griner v. King, 104 F.4th 1, 2024 U.S. App. LEXIS 13879, 2024 U.S.P.Q.2D (BNA) 1033, 2024 WL 2873259 (8th Cir. Iowa June 7, 2024)
[3] Peterman v. Republican Nat’l Comm., 369 F. Supp. 3d 1053, 1063
[4] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)
[5] Griner v. King, 104 F.4th 1, 2024 U.S. App. LEXIS 13879, 2024 U.S.P.Q.2D (BNA) 1033, 2024 WL 2873259 (8th Cir. Iowa June 7, 2024)
[6]Lowe, Lindsay. 2024. “Kamala Harris’ coconut tree meme is going viral (again). What does it mean?” Today. https://www.today.com/popculture/news/kamala-harris-coconut-tree-meme-rcna163005.
[7] The NEWS minute. 2018. “CPI (M) has become 'Communist Party of Kerala-Marxist’: Memes mock Tripura poll loss.” The NEWS minute. https://www.thenewsminute.com/kerala/cpi-m-has-become-communist-party-kerala-marxist-memes-mock-tripura-poll-loss-77365.
[8] The Commune. 2023. “Twitter Allegedly Ordered To Take Down Meme Mocking Dynastic Politics Of DMK - The Commune.” TheCommuneMag. https://thecommunemag.com/twitter-allegedly-ordered-to-take-down-meme-mocking-dynastic-politics-of-dmk/.
[9] Section 14, Indian Copyright Act, 1957.
[10] Section 52(1)(a) Indian Copyright Act, 1957
[11] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
[12] Civic Chandran v. Ammini Amma, 16 PTC 329 (Kerala)