Meme and GIF: Whether It Is Protected under Copyright Law 

A Meme is a slightly modification of some pre-exiting work. It could be anything e.g. image, video clip, or GIFs, etc. It is widely used across the social media to spread the humor. Words are good for expressing thoughts, ideas, stories and etc. However, mood and humor are expressed better in moving pictures. Memes and GIFs can be shared easily in the cyber space. The efficiency of their expressiveness is the key to their popularities.

Memes and GIFs are not a new type of copyrighted work that needs a new definition. They are subject to both protection and infringement of copyright created by Memes and GIFs. Creating Memes and GIFs could potentially gain an ownership if they meet the requirements.

An author has to consider the factors below, if it wants its work to be qualified for copyright protection.

1. Works must be originated by an author;
2. The effort of author to create works is required;
3. An author must use its skills to create such work; and
4. An author must use its judgment when producing works.

Focusing on creating Memes and GIFs, derivative work comes into consideration since it seems that memes and GIFs are derivative work of somebody’s pre-existing work by using those material and creating into another separating ones and inserting a funny quote, so it reflects that memes and GIFs authors do not use much efforts. Besides, the author is also lack of originality since Memes and GIFs are not completely changed from the pre-existing work.

Under Section 27 of Copyright Act, it states that reproduction, adaptation or communication to the public of a copyrighted work shall be deemed an infringement of copyright. This means copying and sharing copyrighted Memes and GIFs could potentially be subject to an infringement. However, there is an exemption mentioned under Section 32 that one could use those copyrighted work if such use does not affect to a normal exploitation of the owner of copyright and does not unreasonably prejudice to the legitimate right/interest of the owner of copyright. In other words, the fair use doctrine is recognized in Thailand.

To determine whether fair use doctrine could be applicable to Memes and GIFs, the two main factors must be considered:

1. The amount of substantiality of the portion used in relation to the copyrighted work as a whole; and
2. The effect caused by the use to the potential market or value of the copyrighted work.

Author: Panisa Suwanmatajarn – Managing Partner, The Legal Co., Ltd.