Humans vs. People (of Copyright)
What’s common between a sappy stories page and a Delhi University photocopier? Creativity, and who can profit from it.
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Two editions ago, I asked you if you think the social media business Humans of Bombay (HoB) has a credible case against its newer rival People of India (PoI). The Delhi High Court passed a judgement and dismissed the case last week.
About 88% of readers who answered the poll said HoB had no case because it, too, is a copy (of Humans of New York). One person voted that the company’s complaints may be legitimate if their original content is getting copied.
Another reader pointed out that HoB might have trouble justifying its stance legally. “…in my personal opinion everyone and everything on social media is original, at least from the writer’s perspective. Do we have any copyright law for what is mentioned on social media?” they asked.
To answer this question, and understand the Delhi High Court’s ruling, we need to go back to a story about a photocopy shop.
Decoding Humans of Bombay vs. People of India
In 2016, another case of copyright violation played out in the Delhi High Court between two very unlikely parties: the Oxford University Press and a famous but nondescript shop called Rameshwari Photocopy Service, located in Delhi University’s north campus.
Oxford sued Rameshwari’s owners for copyright infringement because the shop was photocopying portions of its (rather expensive) textbooks, collating them, and selling them as course prep material to students of Delhi University.
But the tiny shop won. The court made a simple point: photocopying portions of an assigned textbook and selling them without profit so students could get educated wasn’t a copyright infringement. Under Indian copyright law, it was ‘fair use’.
The ‘DU Photocopy case’ is a landmark one, widely studied and often cited in courts in discussions regarding the fair use of a piece of art of knowledge.
But what is fair use of art when you’re running a social media account with other people’s faces and stories? What if you’re doing it for profit: to acquire a massive audience and then make money off it?
For social media businesses, it is much harder to claim copyright to their work because so much of it is derived from somebody else’s. Just ask Humans of Bombay, the social media marketing firm (and Instagram page) of human-interest stories that received a rather underwhelming judgement from the Delhi High Court last week.
Verdict: No Real Case
A quick recap: last month, Humans of Bombay sued rival People of India for allegedly copying photos and captions from its social media accounts. HoB also accused PoI of copying its business model. This particular accusation upset a lot of people. One of them was Brandon Stanton, who, in 2010, founded Humans of New York, the storytelling page that inspired a thousand different ‘Humans of…’ replicas, including HoB. Stanton called out Humans of Bombay online for daring to file a copyright infringement lawsuit despite being a copy of his original idea.
Last week, Humans of Bombay claimed a legal victory. But if you dig into the judgement (pdf), it’s not really a victory.
First, it looks like HoB wasn’t quite in the clear itself. In court, People of India submitted evidence to show HoB had also copied its photographs and captions (yikes!). PoI also argued that in many instances, subjects had shared an identical story and image of themselves with both (and perhaps other) platforms, giving them all permission to publish. In that case, the court ruled that neither HoB nor PoI could claim copyright. Photos and stories belong to the people who created them.
Humans of Bombay founder Karishma Mehta and People of India founder Drishti Saxena did not respond to my requests for comment.
The Delhi High Court also ruled that no one can copyright an idea, such as the idea to run a storytelling platform. What can be copyrighted is individual expression — how you write a story and how you take a photograph.
What Creativity?
That’s where the problem is. By their own admission, both Humans of Bombay and People of India often reproduce submissions they receive from people interested in getting featured. What is either company’s input in this ‘creative’ process other than to post online what they have received, perhaps with some minor edits? In HoB’s case, several such posts are paid for by clients looking to advertise themselves or their businesses.
Now, Humans of Bombay has expanded its business model to other original works, including a book, Ordinary People, Extraordinary Stories. However, this is a re-publication of stories published (rather, re-published) on its social media accounts over the years. The company also adapted some of these stories to audio for radio station Red FM and sold T-shirts via The Souled Store. HoB is also hosting a Bombay Storytelling Event in Mumbai, although it has now shifted the event from end-October to January next year. In FY22, it made ₹3.17 crore (~$380,000) in profits after tax, a solid 50% net profit margin.
Yet, none of this makes Humans of Bombay’s business model unique, contrary to what it claimed in its lawsuit. What’s more, it is profiting from the stories of other people, expressed in a creative format that is also not its own. That would explain why the Delhi High Court merely told both parties not to blatantly copy from each other and rejected all other demands HoB made, including recovering damages from PoI.
Compare this with Delhi University’s Rameshwari Photocopy Services. That business was also (quite literally) photocopying portions of someone else’s work and selling it to students. But it wasn’t for profit; the shop was helping students access study material on the university’s behalf.
Taking others’ creative expression and using it for profit on social media isn’t really ‘fair use’. This is why running a business based on a meme or ‘storytelling’ page can be so tricky. It’s common to see meme pages carry disclaimers such as “DM for credit or takedown” so that irate users don’t sue them for repurposing their ideas and personal photos/videos.
Forget memes or stories; even linking back to someone else’s art as part of your own (for profit) work doesn’t constitute copyright infringement. Two photographers filed this class action lawsuit (pdf) in 2021 in the US against Instagram. They complained that Instagram allowed news organisations to embed their original work posted on their Instagram accounts. Earlier this year, a California appeals court dismissed the suit and ruled in favour of Instagram. The court’s argument was this: HTML codes for embedding photos don't reproduce original artwork; they simply link back to it. That isn’t copyright infringement.
So, does that mean you can’t make money with a meme account? Not at all. If you come up with your own creative format, it can be protected from others trying to make a buck off it. Take DudeWithSign, for example.
Seth Phillips became popular as a guy holding a cardboard placard with universally appealing aphorisms. In April this year, his company Jerry Media sued food company JEM Organics for $150,000 for allegedly using his likeness without consent. The firm used a version of DudeWithSign to run a social media ad campaign. Jerry Media copyrighted the ‘DudeWithSign’ meme format when it found the JEM Organics copycat. It’s not a one-off; before this lawsuit, it had served legal notices to seven other brands for copying the meme format.
Jerry Media can sue with abandon because it found a unique artistic expression to copyright and made money from it. Even so, the DudeWithSign meme is widely used (as all memes are) and has several copycats, including Indian creator Madhur Singh who goes by the moniker ‘The Placard Guy’. But, as long as they’re not using it to make money, they’re safe from the litigious Jerry Media.
Perhaps this is what Humans of Bombay needed. If you’re going to make money by repurposing others’ stories and faces, you need a solid moat around your business model. HoB calls itself a storytelling platform, but it doesn’t tell stories in a way unique enough to qualify as its own. If it were to come up with its own narrative device and style, distinct from local competition and its inspiration, Humans of New York, it could go back to court someday with a lot more confidence and a lot less ridicule.
Last Scroll Down📲
Rolling out the red carpet: Disney is pulling out all stops to sell its India business. As per reports, it has already spoken to Reliance Industries, the Adani Group, Sun TV, PE firm Blackstone, and even Sony, which has been trying to close its merger with Zee for months now. Disney is also merging Hotstar India parent Novi Digital with Star India, presumably to beef up the asset for this bevy of buyers. At least Hotstar has some good news this week: it hit a record 35 million concurrent views during last week’s India-Pakistan cricket World Cup match.
Here come the AI ads: Indian marketers can’t resist the hype. There’s been a recent flurry of ads featuring generative AI tools. Last week, electronics-maker boAt released a cricket anthem set to an entirely AI-generated video. Meanwhile, Shah Rukh Khan has featured in ad campaigns for Cadbury’s and Sunfeast biscuits that use gen-AI tools to allow customers to use his likeness.
…and more ads: Netflix is piling them on. The streaming platform is now offering marketers a whole ‘new’ (but actually, quite old) set of advertising options, including title sponsorships for its shows and live events. It’s also borrowing a leaf out of Spotify’s book by offering ‘Binge’ ads: watch a few ads back to back to continue bingeing episodes ad-free.
It’s not over yet: Hollywood’s writers may have called off their strike, but the actors’ guild SAG-AFTRA is still negotiating with studios. It’s not going well. Variety reports the two parties are at an impasse over a formula to determine how much actors are paid in residuals from streaming shows. SAG-AFTRA is asking for $500 million a year; the studios are willing to pay $20 million.
Trumpet 🎺
This week’s edition has been all about lawsuits and social media. But some lawsuits are so frivolous they deserve to be torn apart. That’s exactly what Ragini does in this YouTube video.
To recap: Ragini is a relatively small vlogger who had some 4,000 subscribers on her YouTube channel in February this year. That’s when she uploaded a ‘roast’ of actor Sonam Kapoor, recounting some of her most infamous public comments in interviews and press conferences. Kapoor has often been criticised for making vapid statements that are out of touch with reality. To be fair, Ragini balanced out her jokes about Kapoor by pointing out that everybody says silly things but doesn’t get publicly judged like celebrities do.
But Kapoor wasn’t amused. She and her husband Anand Ahuja sent Ragini a legal notice accusing her of posting an “illegally uploaded” video with Kapoor’s (very public) comments in what appears to be an allegation of copyright infringement and defamation.
There are several other hilarious lacunae in this legal notice, and Ragini roasts the document even better than she roasted Sonam Kapoor. Since news of the lawsuit broke out, Ragini’s subscribers have grown to over 19,000.
But that’s not the most ridiculous thing about the whole affair. An upcoming vlogger with a relatively tiny following is hardly a threat to an A-list actor from a film family. If celebrities sued everyone who made fun of them, that’s all they’d be doing for the rest of their lives. Whatever happened to being a good sport?
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