This article is written by Cavinshaw I A, B.A.,LL.B.(Final Year), Government Law College, Tirunelveli, affiliated with Tamil Nadu Dr. Ambedkar Law University, during her internship at LeDroit India
Abstract:
Internet memes have emerged as a significant form of digital expression and communication in contemporary online culture. Viral memes are often created by modifying copyrighted images, videos, or audiovisual content, which raises complex issues under copyright law. While memes are generally shared for humour and commentary, their increasing commercial use by brands and influencers creates serious legal concerns. This article examines the copyright status of viral memes under the Indian Copyright Act, 1957, focusing on fair dealing, parody, and transformative use. It also analyses the legal risks associated with commercial exploitation of memes and highlights the need for clearer legal guidelines to balance creative freedom and intellectual property protection.
Keywords:
Viral Memes, Copyright Law, Fair Dealing, Commercial Use, Parody, Digital Media
Introduction
Nowhere is change more visible than online, where conversation flows differently thanks to connected networks. The rise of the meme – simple pictures, clips, or words that spread fast through shares and reactions. Often funny, sometimes sharp, these snippets travel across apps at surprising speed. Whether mocking leaders, highlighting issues, or just making someone laugh, they shape how ideas move today.
Although often silly or lighthearted, internet memes carry real legal weight – especially under copyright rules. Many borrow material already protected by rights: scenes from films, images, art pieces, even short videos. Sharing them casually might appear innocent enough. Yet trouble begins if companies, public figures, or marketers start making money from popular versions. What spreads fast online can become a liability once profits enter the picture.
This piece takes a close look at how viral memes challenge traditional ideas of copyright, especially when used for profit. Ownership often becomes unclear once an image spreads online. Legal boundaries blur, making it hard to define who holds the rights. Infringement may occur even without intent. Exceptions like fair dealing offer some protection but are narrowly interpreted. Moral rights remain relevant, though they are frequently overlooked in digital spaces. Personality rights come into play if someone’s image is used without consent. Enforcement proves difficult due to rapid sharing across platforms. India’s legal framework provides certain guidelines, yet gaps persist. Global trends influence local interpretations, adding further complexity.
Evolution and Concept of Meme:
A concept was established in the year of 1976 publication took shape when Richard Dawkins described cultural transmission through units of idea or behavior. Over time, such patterns shifted form once internet culture emerged. Visuals began carrying meaning across networks instead of words alone. These images – often laced with humor or irony – move rapidly between users without centralized direction.
Modern internet memes typically include:
- A copyrighted image or video (template)
- A note written later by someone using the system. Changes made at that time stay part of the record
- A meaning shaped through online interaction, recognized quietly among those who navigate digital spaces
A fresh take often spreads faster than anyone expects. One picture might shift shape countless times, drifting far from its start without clear ownership or limits on how it’s used.
Memes as Copyrighted work:
Do Memes Have Copyright Protection?
Copyright under Section 13 Indian Copyright Act 1957
- Literary works
- Dramatic works
- Musical works
- Artistic works
- Cinematograph films
- Sound recordings
A single image, often reused across platforms, might qualify as art under Section 2(o). Motion-based versions, built from clips or sequences, could be seen instead as film-like creations. What matters is how the content is structured – not just its humor. Classification hinges on form, not popularity. Some stills echo paintings in their composition. Others, spliced with timing and cuts, lean toward cinematic expression. Legal labels follow structure more than intent.
A meme usually builds upon something already created, drawing from material protected by copyright. Its legal protection covers just the new elements added by the person making it – like specific edits or additions they uniquely contributed
- A unique caption
- Creative alteration
- New expression or message
Ownership stays with the creator of the image or footage. The original rights holder keeps control regardless of usage elsewhere.
Ownership Issues in Viral Memes:
Who Owns a Viral Meme?
What it means to own a meme sits at the heart of tangled debates within online communities. Though copied endlessly, each version carries traces of someone’s original idea. Because sharing happens so fast, pinning down authorship grows harder every day. Still, creators sometimes leave subtle marks behind – clues that point back to where things began. Even when altered beyond recognition, fragments remain tied to their source.
1. Original Copyright Holder
- A lens operator behind stills, someone shaping frames through motion picture work, a creator expressing ideas visually, or a team managing full-scale visual projects
- Ownership of the initial picture or video stays with the creator. Though shared publicly, legal rights do not transfer automatically. Usage by others requires clear permission. Control remains even after distribution online. Reproduction without consent breaches intellectual property rules
2. Meme Creator
- Copyright applies solely to fresh creative elements introduced by the creator
- Using the meme for profit requires approval from the creator of the source material. One might need consent before applying it in a business context. Without clearance, legal issues could arise. The originator holds control over commercial usage rights. It rests on whether the initial author allows such use
3. Social Media Platforms
- Memes belong to users not social media platforms
- Users grant platforms a non-exclusive license to host and share content
When a meme spreads quickly, tracing who started it feels out of reach. Enforcement soon fades into confusion.
Copyright Infrigement and Meme Creation:
Does creating a meme amount to infringement?
Copyright infringement under section 51 occurs when someone violates copyright
- Uses a copyrighted work without permission
- Acts this way only if the person holds full copyright privileges
Most memes technically qualify as infringement because:
- Folks borrow material that’s protected by law
- Getting approval happens only once in a while
Fair dealing rules mean some breaches aren’t pursued under law.
Fair Dealing and Memes in India:
Legal Framework
Section 52 of the Copyright Act provides exceptions where certain uses do not constitute infringement. These include:
- Fair dealing for criticism or review
- Reporting of current events
- Educational purposes
- Judicial proceedings
Memes often claim protection under criticism, review, or commentary, especially political or social memes.
Limits of Fair Use in India
Indian copyright law differs from U.S. law
- It fails to state clearly whether it is a parody or satire
- Provides a narrower scope of exceptions
- Requires strict judicial interpretation
Courts assess fairness based on:
- Purpose of use
- Nature of the copyrighted work
- Amount used
- Effect on market value
Parody Satire and Transformative Use:
Parody and Satire
A twist on someone else’s style often shows up in parody, where laughter comes with a hint of mockery. Satire takes a different path – using wit to point at flaws in public life or power structures. Out there online, many memes follow one of these two routes without saying so outright.
Few judgments directly label parody a legal shield, yet some rulings quietly accept altered expression. Though not named outright, reshaped content finds room within existing exceptions.
Transformative Use Doctrine
A work is transformative if it:
- Adds new meaning or expression
- Far from simply substituting the initial version
International Case Law:
A ruling in Campbell v. Acuff-Rose Music, Inc., by the U.S. Supreme Court, found that a parody might still be considered fair use despite being sold for profit. Though commercial purpose often weighs against fairness, the nature of the work mattered more here. Transformation stood at the center of the decision – changing the original’s meaning or message. Because the new version mocked the source rather than merely copying it, courts could allow such uses under copyright limits. Profit-making alone did not disqualify the claim. Ultimately, how the borrowed material was used shaped the outcome.
Even if Indian courts haven’t officially embraced this principle, shifts in perspective matter more now when judging what feels fair.
- Commercial Use of Viral Memes:
- Commercial use includes:
- Brand advertisements using memes
- Influencers monetising meme pages
- Meme-based merchandise
- Promoted content built around trending internet jokes
- NFTs and digital assets based on meme
Fair dealing protections tend to fade when memes enter commercial use. Though created casually, their legal shield shrinks once money is involved. What began as playful sharing may shift into questionable territory if sold. Courts often see financial intent as a turning point. Not every reuse stays safe under that umbrella. Value-driven usage tests the limits of informal norms. Once income enters the picture, defenses grow thinner.
Commercial Use of Memes and Legal Issues
1. Copyright Infringement
Using material commercially without a permit breaches parts 51 and 55 of the Copyright Act. Those who hold copyright may pursue legal remedies
- Injunctions
- Damages
- Account of profits
2. Moral Rights
Under Section 57, authors have moral rights, including:
- Right to attribution
- Right to integrity of the work
An image may be shared legally, yet its alteration via memes still crosses ethical lines. Though usage permits exist, changing visuals can disrespect original intent. Ownership transfer does not erase creator dignity. Even with permission to distribute, manipulation might harm reputation. Legal access does not justify creative distortion.
3. Personality And Publicity Rights
When brands use celebrity images in memes to sell products, legal issues may arise over rights violations
- Right to publicity
- Right to privacy
Case Law:
ICC Development v. Arvee Enterprises, the Delhi High Court took the view that an individual’s identity carries financial worth. Because of this value, using someone’s image or name without permission was seen as unacceptable. What stood out was the court’s emphasis on control over personal branding. One cannot simply profit from another person’s reputation. Permission matters when commercial interests are involved. This ruling underlined limits on how far others can go in leveraging fame. Recognition came not through abstract ideals but practical legal reasoning. Ultimately, consent became the deciding factor.
Memes and Trademark Law:
Memes may also infringe trademark law when:
- Brand logos are used without permission
- Memes dilute brand reputation
- Misleading links are formed by mistake
Facing damage to reputation, firms may pursue remedies through the Trade Marks Act, 1999. When memes erode brand value, legal pathways open. Protection arises not from trends but existing rights. Relief often follows misuse that affects public perception. Courts examine context before granting relief. What matters is impact on consumer trust. Legal tools exist where mockery crosses into commercial harm.
Global Views on Meme Copyright:
United States
The US has a flexible approach to fair use in copyright law
- Purpose and character
- Nature of work
- Amount used
- Market effect
Fair use often shields memes when they transform original material.
European Union
Strict rules define EU copyright, yet updates now allow some parody uses. Despite this shift, automatic systems scanning content create problems – meme sharing struggles under such oversight.
Conclusion
Memes once began as online humor, yet now serve as serious means of expression, persuasion, even trade. Though spread fast through shared invention and reworking, rules around ownership still apply – more so if money enters the picture. In India, laws struggle to keep pace with how quickly digital culture evolves, leaving meme usage in a gray area. Unclear boundaries define what is allowed, especially when borrowing meets commercial intent.
Using memes for profit without consent can lead to serious legal trouble – copyright breaches, damage to personal reputation, or unauthorized use of someone’s image. When humor spreads fast online, rules need to catch up; they should back originality while guarding ownership, so internet creativity stays lively, just, and within lawful bounds.
