Unless you have been hibernating or have a strong resolve to completely avoid social media, chances are that you have come across the latest viral ‘Ab Ki Baar, Modi Sarkar’ meme doing the rounds. Apart from attempting to make a few funny slogans myself, the ubiquity of the meme forced me to think about the IPR issues involved.
In an earlier post, we have discussed the copyrightability of memes, where Devika concluded that a meme is usually protected from an infringement suit as either parody or fair use, as a meme involves lifting an image and using it such that the import and context transforms its meaning. As for the slogan that the meme contains, it is generally accepted that stringing a few words together does not rise to the level of an “literary work” to qualify for copyright protection.
The internet meme is a new kind of election campaign strategy. But how do election campaigns establish their ownership over the images, slogans and phrases they come up with? From ‘Garibi Hatao’ to ‘India Shining’ and now, ‘Modi Sarkaar’, the elections have always gotten creative juices flowing. Campaigns are usually characterised by catchy images, logos and merchandise (white AAP cap, anyone?). The answer would lie in trademark, as trademark law can be used for a campaign to protect its ‘brand’. It was recently in the news that the trademarks registry had received an application for registering a trademark over the term ‘Namo Tea Party’. The application was filed by Ahemadabad-based Shailesh Tiwari, who purported himself to be the ‘convenor’ of the movement. But why would a non-profitable fan club want to trademark its name? Who loses if ‘consumers’ are deceived or confused by any member of the public advertising it? Interestingly, at the height of the Tea Party protests in the USA in 2011, two founders of the organisation went to court over who owns the trademark over the ‘Tea Party Patriots’ brand. In that case, the stakes were high as the Tea Party Patriots were collecting large sums as donations and it was therefore important whom the money went to.
There have been no famous instances in India, of a political party attempting to protect the IPR generated by its official campaign. Not even the US Elections, one of the biggest publicity spectacles in the world, boasts of too many such instances. The Obama campaign was in the news in 2012 when it proceeded against an online t-shirt company for using the ‘Rising Sun’ logo in t-shirts. But this appears to be an isolated incident. However, this is not surprising, as political parties would consider ‘infringement’ as free publicity for their campaign. Those in charge of the BJP campaign are probably delighted by the fact that the ‘Aap Ki Baar’ meme has gone viral. The Obama campaign was unique in the amount of funds it raised through merchandise, and that could explain why it aggressively targeted trademark infringements.
If not for trademark and copyright infringements over the meme, an aspect worth considering is the publicity rights that go along with the ‘star’ of a meme. In ICC Development (International) Ltd v. Arvee Enterprises, the Delhi High Court held that the right of publicity vests in an individual alone and he alone is entitled to profit from it. More recently, Daler Mehndi sued a merchandise company for cashing in on his personality and selling Daler Mehndi merchandise (spicyIP has blogged about it here). However, again, Modi would be wiser to go by the adage, ‘all publicity is good publicity’, unless of course the ‘Ab ki Baar’ meme is appropriated by the opposition and used to defame him. If that happens, perhaps Modi can sue for a violation of his publicity rights.