The meme culture industry flourishes in the grey areas of intellectual
property, where creativity and innovation thrive despite the lack of protection
offered by IP regulations or legislations.
The definition of "artistic works" in section 2 (c) of the Copyright Act, 1957
includes paintings, sculptures, drawings (including diagrams, maps, charts, or
plans), engravings, photographs, works of architecture, and artistic
handicrafts. The majority of photos and photographs used in memes are
copyrighted; therefore, their unauthorised distribution constitutes an
How should courts apply copyright law to "internet memes" is a pending legal
topic for the courts and attorneys to specifically work on.
There are two copyright issues associated with memes:
- Copyright on the meme itself, and
- Copyright on the picture, character, or name of the person, as well as
Section 14 (d) I of the Indian Copyright Act, 1957 authorises "the making of
a copy of the film, including a photograph of any picture constituting a portion
thereof..." This indicates that the production of a meme must be supported by
prior permission from the owner of the copyright for the content to be utilised
as meme material. Copyright protection requires originality, fixation, and the
satisfaction of the idea-expression duality.
In instances of copyright infringement, the "fair use" legal idea comes to the
rescue. Section 54(1) of the Indian Copyright Act, 1957, which says "fair
dealing with any work," defines fair use doctrine. It is an acceptable defence
in situations where copyright infringement would otherwise occur. Social media
memes are considered derivative works, and only the copyright holder has the
legal right to create them. However, the owner's copyrights are not absolute and
Validity of Copyright Protection for Internet Memes
Copyright protection for internet means is really important because copyright
grants the owner of the copyright various exclusive rights, including the
ability "to reproduce," "to make derivative works," "to distribute copies," and
"to show," making copyright protection for online memes is crucial. These are
essential rights for a creator to hold in check and safeguard their original
The question of whether an internet meme is copyrightable is understandable
given that they can be viewed as plain entertainment. Many types of jokes have
not been protected by copyright, forcing comedians to establish self-policing
industry standards. Internet memes are nonetheless subject to the same copyright
regulations as any other potentially copyrightable works, though. According to
the Copyright Act of 1976, "original works of authorship fixed in any physical
medium of expression, now known or hereafter created, from which they can be
viewed, reproduced, or otherwise conveyed, shall be entitled to copyright
Thus, focus and originality are two factors that are necessary. Memes are
considered unique since they were individually generated and meet the "very low"
standard for creativity required for copyright protection. Memes are fixed as
A work is "fixed" in a tangible medium of expression when its embodiment in a
copy or phone record, by or under the author's authority, is sufficiently
permanent or stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration, according to the
Copyright Act. In accordance with the 1976 Act, a copy is defined as "material
objects in which a
work is fixed by any means presently known or later discovered, and from which
the work may be perceived, reproduced, or otherwise conveyed, either directly or
with the assistance of a machine or device."
The question of whether internet memes are "fixed" can be answered simply but
interestingly. Online images are "fixed" in the sense of the law, according to
the courts. A meme will be properly "fixed" in a tangible medium by storing the
image on an online server for any significant amount of time that is more than
"transitory." Although it seems like a logical response to the fixation
question, this sets online memes apart from other joke-telling techniques that
lack copyright protection, such as standup comedy, where a comedian's delivery
of a joke might vary from performance to performance.
Original, as the term is used in copyright, merely means that the work was
independently developed by the author (as opposed to taken from other works),
and that it possesses at least a minimal amount of ingenuity.
examination is split into two sections by this holding:
- was the work independently developed; and
- does the work exhibit a bare minimum of innovation.
If the work was independently generated, the first question is more
of a case-by-case issue for litigation. A work only has to be "independently
developed" if the author does not "copy from another work" when creating it.
Copyright originality does not call for novelty, in contrast to patent
registration. If a certain meme creator "independently produced" their meme,
that will establish if they have a copyright interest in their meme or if they
are violating the meme of another creator. For instance, if two poems write
identical poems without being aware of one another's efforts, neither poem is
unique yet both are original and copyrightable.
The more important question surrounding the copyright value of online memes is
whether or not they meet the criteria for "minimum degree of inventiveness."
"The required level of imagination is unquestionably very minimal; any amount
will do. The vast majority of works pass with relative ease since they all have
some form of originality, "no matter how simple, humble, or obvious" it may be.
Many publications that exhibit only average preparation effort and expertise are
protected by copyright.
The Supreme Court ruled in Bleistein v. Donaldson
. that a realistic etching used as a circus advertisement was
not ineligible for copyright protection. The Court put more emphasis on the
personality of the work even though it was an etching that was meant to be a
realistic representation of circus acts, concluding that all creative works have
"unique" and "irreducible" expressions from their creators.
is shown in memes by the backdrop image chosen (i.e., what copyrighted material
would best capture the creator's expressive vision), the placement of the text
(i.e., above the picture, within the picture like a dialogue, etc.), and the
message contained in the text (i.e. the phrases the will constitute the joke or
commentary). Creative choices were made while selecting the precise SpongeBob
episode scene, the expression of the humour, and what and how to name the image
in our example meme, which was developed infra in Section III(a). No matter how
"crude, humble, or obvious" they initially seem, each creator's unique set of
choices ultimately leads to distinct creative choices that satisfy the
requirement of "some creative spark.
Meme producers already have legal
protection from copyright whenever they modify their original works; they don't
need to know or intend that their works are protected. A creator does not need
to intend to produce a work protected by copyright. In Alfred Bell v. Catalda
mezzotint artist replicated works that were in the public domain, but the end
product had minor differences as a result of an artist error. According to the
Second Circuit, these minor differences resulted in the establishment of a new
Despite the fact that the author had no intention of producing a copyrighted
work. Courts and lawyers should not be the parties responsible for determining
artistic merit and what is "creative" outside of the most obvious cases.
Internet memes may not be considered works of art deserving of copyright
protection, but many contemporary art forms, such as Richard Prince's
appropriation style or Andy Warhol and Jeff Koon's pop-art style, were once (and
are still) viewed with the same suspicion. The court's role is limited to
determining which kinds of works satisfy the statutory requirements; it does not
decide what is "worthy" of copyright protection. Internet memes ought to be
covered by copyright protections in circumstances of independent invention since
they are fixed and meet the criteria for "very low" inventiveness.
Internet Memes and Fair Use
Although existing prior to 1976, the fair use affirmative defense was finally
codified in the 1976 Copyright Act. The fair use defense exists to advance
copyright's purpose of "promoting the Progress of Science and useful Arts." The
defense accomplishes this by allowing "others to build freely upon the ideas and
information conveyed by a work."
Fair use "is not designed to protect lazy
appropriators. Its goal instead is to facilitate a class of uses that would not
be possible if users always had to negotiate with copyright proprietors. The
"ultimate test" of fair use is whether the progress of human thought "would be
better served by allowing the use than preventing it." In analyzing the fair use
defense, courts balance the four factors outlined in the 1976 Copyright Act:
- The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the
The fair use doctrine "permits and requires courts to avoid rigid application
of the copyright statute when, on occasion, it would stifle the very creativity
which that law is designed to foster." Instead the statute "employs the terms
'including' and 'such as' in the preamble paragraph to indicate the illustrative
and not limitative function of the examples given, which thus provide only
general guidance about the sorts of copying that courts and Congress most
commonly had found to be fair uses."
Courts should not weigh "the four statutory
factors�in isolation, one from another. All are to be explored, and the results
weighed together, in light of the purposes of copyright." There are no
"bright-line rules," but instead the statute "calls for case-by-case analysis."
Copyright Law Will Help Protect and Promote New Meme Creators
The last policy concern that must be considered is how copyright protection will
affect the creation of new memes. Here, there are three aspects of copyright law
that will protect and promote. new meme creators:
- Independent Creation:
As long as they "independently produce" their new meme, the creator of a
meme will not be held accountable for infringing on another meme's
intellectual property rights. It is possible for two different meme creators
to produce the same meme and have their own individual copyright interests
in their work. Nevertheless, neither meme creator would be infringing on the
copyright of the other if they independently created their own meme and were
unaware of the existence of the other creator's meme.
Additionally, because memes are considered to be either "compilations" or
"derivative" works, the copyright protection "extends only to the material
contributed by the author of such work, as distinguished from the
pre-existing material employed in the work, and does not imply any exclusive
right in the pre-existing material." Because of this criterion, the only
part of the meme that the person who created it may claim as their own in
terms of copyright protection is the part that contains the jokes,
commentary, or other graphic changes they made.
They do not have an exclusive right to generate memes using the copyrighted
image that they selected, which means that other meme artists are free to
use the same copyrighted image in their own memes as well.
- The Idea/Expression Dichotomy:
The distinction between ideas and expressions offers new makers of memes
still another layer of protection. The phrase "to any idea, procedure,
process...concept or principle" does not fall under the protection of an
author's copyright in a work.
Because of this criterion, many different types of jokes have been unable to
benefit from copyright protection. "copyright's merger theory would limit
the author's ability to gain protection" in situations where there are only
a few limited ways to communicate the same concept or joke.
Because to this provision of the law governing copyright, it would be
impossible for the creator of a meme to acquire a copyright interest (and
monopoly) in the concept of cracking a joke about a recent development in
popular culture or making use of an especially humorous image to turn into a
meme. Instead, the person who initially created the meme would only have a
copyright interest in their particular statement.
In actuality, the application of this rule would restrict a meme creator's
copyright interests to the narrower scope of preventing exact copies of
their memes from being used commercially by third parties. However, the
primary concern of meme producers with regard to copyright protection is
precise copying and exploitation, and the limited scope of this protection
not only suits what meme creators wish to protect but also encourages the
production of new memes by other authors.
- The Fair Use Doctrine
The "fair use" defence can be used by new authors of memes if they
"transform" an existing meme into one with a different meaning or develop a
new meme based on an existing meme. The existence of "meta memes," sometimes
known as "memes about memes," is made possible by this idea. This
subcategory of meme creation is one that is afforded the same degree of
protection against unfair usage as the original internet memes.
It is generally accepted that the use of a meme for commercial purposes does
not fall within the purview of the fair use doctrine. As a result, the owner
of the copyrighted work that was used to create the meme may pursue legal
action against the person who created the meme. It is important to note,
however, that if a company creates its own meme without copying any original
artistic work, then the distribution of the same meme by third parties, even
if done for commercial purposes, does not call upon any copyright
This is an important point to keep in mind. Many companies are looking into
the possibility of using memes as a form of advertising. In point of fact,
many businesses have incorporated meme marketing into an extremely vital
component of their overall marketing campaign.
As an illustration, Zomato has utilised a photograph of the well-known
Pakistani comedian Moin Aktar in his role as Harmonium Chacha for the
purposes of advertising and marketing. In this particular instance, the
owners of the copyrighted work in the picture of the Harmonium Chacha are
the producers of the film, and Zomato has used the exact same image to
promote its own business.
Meme-Ology Litigation In India Vis-Vis Other Countries
Till date, India has not witnessed any meme-ology litigation. In the United
States of America, the jurisprudence pertaining to parody such as memes etc. is
almost the same as that of India. Even USA recognizes the parodies within the
'fair use' exception, if the meme satisfies the four statutory factors as laid
above in the present article.
United Kingdom has implemented the EU Copyright Directive, which provides
exceptions to caricature, parody and pastiche.8 Similar to the Indian and USA
laws, even UK protects the memes under the doctrine of fair use/dealing,
provided the meme is not used for commercial purposes. Section 30A of the
Copyright, Designs and Patents Act, 19889 in UK protects caricature, parody and
pastiche under fair dealing.
Further, several countries including India have come up with intermediary
guidelines to be followed by social media websites such as Facebook and
Instagram, whereby they are instructed to maintain a strong surveillance on any
uploaded content to ensure the protection of rights such as the right to privacy
and protection against defamation.
In India "The Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021" were recently enacted by the Ministry of Electronics
and Information Technology, which mandate that intermediaries such as Facebook,
Instagram etc., to block the access of any unlawful information within 36 hours
upon an order from the court, the government.
Elsewhere, European Union has come up with the EU Directives for Copyright,
Article 17 of which prescribes that, information service providers that store
and provide information to public at large have to ensure the rights of the
right-holders in protecting their content on such platforms.