In a recent article
posted on Bar & Bench (see here) the
authors raised an interesting facet of trademark law, one that has been the
subject of controversy for many years now.
The popular
television show, Game of Thrones has
become a worldwide cultural phenomenon, ever since it started airing as a TV
series on HBO in 2011. As a result of its global popularity, it has entered
public consciousness in a similar way to entertainment franchises, such as Star
Wars, Star Trek, Harry Potter and Marvel Comics, to name just a few. With such
collective recognition and recollection of the show’s characters and themes,
many fans choose to share their admiration of the show by posting derivative
content online.
The Issue
The Indian comedy
group All India Bakchod, popularly referred to as AIB decided to capitalize on
the popularity of the show and created a number of amusing memes out of stills
from the show. It juxtaposed these stills with humorous captions or
superimposed them with advertising taglines of completely unrelated products to
generate humour, which it then shared through its various social media
platforms.
Of course, AIB is
hardly the first one to do this. There is quite a sub-culture on the Internet
for fans of not only Game of Thrones,
but various other film, television or literary franchises to express their
talent at humour alongside their admiration for their preferred “fandom” by
creating and sharing jokes or amusing observations in the form of memes. There
are Facebook pages, YouTube channels and other social media platforms entirely
devoted to this enterprise, in fact! For a look at AIB’s efforts, you can take
a look here.
Copyright
Infringement and its Defences
However, the
pertinent question arising out of this for IP lawyers is does this constitute
infringement of HBO’s copyright in the show?
There is no denying
that HBO, including its affiliates and subsidiaries, is the rightful holder of
copyrights in the show Game of Thrones.
However, a problem that has always plagued fans of such properties is: can they
not express their love for their favourite show, movie or comic book without
being ensnared in the web of potential IP infringement?
The most obvious
defences in cases of derivative fan works are that they are in the nature of
tributes to their source material, and therefore do not attempt to take away
from their repute. They may, in fact, serve the opposite purpose in driving
curiosity in the works which they derive from and to which they refer. Another
common defence for certain fan-derivative works is that they are either in the
nature of a critique or a parody/spoof of the source material. And the final
important defence in determining whether a fan-derivative work is harmless is
that it should not be for profit.
It is with regard to
the last criterion that the controversy appears to be raging surrounding AIB’s
use of Game of Thrones stills for
comedic effect. As can be seen from the series of memes, they have actually
been constructed towards a promotional purpose- to announce the release of one
of their YouTube videos. Therefore, under the circumstances, it is being argued
that AIB may very well be liable for intentional copyright infringement.
Source: AIB on Facebook
IP Rights v
Freedom of Speech/Creativity
The landmark
judgement in India upholding the right to freedom of speech and expression over
disparagement involving IP rights is in the case of Tata Sons Ltd. v Greenpeace International & Anr.[1] Here,
the dispute centred around a satirical game, Pac-Man style, which showed the
endangered Olive Ridley Turtle being hunted by the ‘Tata demons’, in the form
of animations of their famous trademark, 
. The game had been designed by
Greenpeace as an innovative form of protest against Tata’s construction of
Dhamra port in an ecologically sensitive area of Orissa. Tata, in tis turn,
claimed that the representation of their famous device mark in such a negative
fashion was affecting their considerable reputation built around the trademark
and alleged tarnishment and disparagement. However, Justice Shri Ravinder Bhat
of the Delhi High Court, in an unprecedented judgement, held in favour of
Greenpeace, causing a stir in trademark owners’ circles.
. The game had been designed by
Greenpeace as an innovative form of protest against Tata’s construction of
Dhamra port in an ecologically sensitive area of Orissa. Tata, in tis turn,
claimed that the representation of their famous device mark in such a negative
fashion was affecting their considerable reputation built around the trademark
and alleged tarnishment and disparagement. However, Justice Shri Ravinder Bhat
of the Delhi High Court, in an unprecedented judgement, held in favour of
Greenpeace, causing a stir in trademark owners’ circles.
Source: www.greenpeace.org
The above case
proves that satire or critique may be a valid defence against an allegation of
trademark infringement/tarnishment. But
is it enough in the case of AIB’s ostensibly promotional use of copyrighted
material?
The comedy group is
only one amongst many, all across the world, who have attempted to capitalize
on the show’s overarching popularity to promote their products. Why hasn’t HBO
proceeded against these myriad “infringers”? Most likely because in pandering
to the show’s already devoted fan-base, they aren’t, in actuality, causing the
network any (financial) harm. In fact, as much as these renditions advertise
third party products, they are propagating the popularity of Game of Thrones even further. An
unitiated may see such a meme/ad and be curious to find out about the show to
which it refers. Thus, in using referential context, the works, whether
intentionally humorous, sarcastic or critical, benefit HBO’s promotional
efforts for its show as much as the third party’s. It’s a symbiotic relation.
AIB is unlikely to
face consequences for its memes, despite juxtaposing unrelated subject matter
therein. And, keeping in mind the vast quantity of similar material spread
throughout the Web, it is unlikely the show’s rightholders will even be
inclined to take such a step. After all, practicality dictates that you don’t
fix something unless its broke, and copyright infringement cannot exist unless
the copyright holder is intent on enforcing her/his exclusive rights. In the
instant case, by allowing a little laxity, HBO is only allowing the fans of Game of Thrones to have a little
creative fun, while quietly reaping the benefit of its popular spread.
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