This article has been authored by Ashutosh Bhagchi.
Memes are now a part of internet culture, usually consisting of satirical or humorous content based on existing works. These online artifacts, usually based on popular media, are used as instruments of satire, social commentary, and political critique. Their legality under India’s copyright law is a serious issue. The overlap between copyright law and freedom of expression makes the status of memes problematic, and it is necessary to examine the legal framework that governs their use.
The Copyright Act, 1957, is the major legislation dealing with intellectual property rights in India. The Act grants exclusive rights to creators and also includes some exceptions that allow limited use of copyrighted work without permission. The central question in the controversy surrounding memes is whether their use of copyrighted work is covered under the exception of fair dealing under Indian law. As per Merriam Webster’s dictionary memes are referred to as “an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media” or “an idea, behavior, style, or usage that spreads from person to person within a culture”.[1]
As per the article published by the Times Of India it is stated that “Indians are spending close to 30 minutes a day on the internet just consuming memes and overover 80% have increased their meme consumption in the last one year,a study by consulting firm Redseer on Monday showed”.[2]
India’s digital media market generated revenue of $21.85 billion in 2023 and is expected to reach $61.37 billion by 2030, growing at a compound annual growth rate (CAGR) of 15.9% from 2024 to 2030,The Indian media and entertainment (M&E) sector grew by ₹173 billion (8.1%) in 2023, reaching ₹2.3 trillion (US$27.9 billion). Notably, new media, encompassing digital platforms and online gaming, contributed ₹122 billion to this growth, increasing its share from 20% in 2019 to 38% in 2023[3]. Thus it is very much evident that the entertainment market is very huge and profitable but the moot question arises about the legality of the memes and what is the standpoint of the legislature in this.
Original literary, dramatic, musical, and artistic works and cinematographic films and sound recordings are protected under the Copyright Act, 1957. According to Section 14 of the Act, an owner of copyright enjoys exclusive rights like reproduction, adaptation, publication, and making available the work to the public.
Nonetheless, such rights have some exceptions under Section 52, which comprises fair dealing provisions. The doctrine of fair dealing is essential in deciding the legality of memes in India.
Memes and Copyright Infringement
Section 2(c) of the Copyright Act, 1957 includes Memes as artistic works together with paintings alongside sculptures, drawings, engravings and photographs and works of artistic craftsmanship. The copyright protection of memes depends on the presence of originality combined with creative judgment based skill. Memes typically contain copyrighted images which they use as material. Using copyrighted material without authorization might constitute copyright infringement but accessing it through fair dealing defences becomes valid.
Key Features of Copyright Infringement in Memes
Substantial Copying: Memes qualified as infringements would exist if they duplicate copyrighted content extensively without seeking authorization.
Commercial vs. Non-Commercial Use: A non-commercial meme typically benefits more from fair dealing while unauthorized commercial use of memes may face infringement allegations.
Moral Rights of the Author: Section 57 of the Copyright Act confirms that authors possess moral rights to protect their work from distortion through protests against unauthorized modifications per legal guidelines.
Fair Dealing and the Defense of Memes
Section 52 of the Copyright Act is an exception to copyright infringement. The applicable clauses for memes are:
- Fair Dealing for Criticism or Review: If a meme is used for criticism or review, it may be protected under fair dealing.
- Fair Dealing for Reporting Current Events: If a meme is created to comment on a current event, it may fall within this exception.
- Parody and Satire: Although the Indian Copyright Act does not specifically identify parody as a fair dealing exception, courts have construed it as part of the general category of criticism and review.
Though no specific case in India is related to meme creation and dissemination, we do get an idea of this through the various other judicial pronouncements and some other cases from the international forums, In India TV v. Yashraj Films[4] The Delhi High Court ruled that small excerpts used for criticism or reporting current events could be protected under fair dealing, even if taken from copyrighted works. This principle can be extended to memes used for commentary.
The Intersection of Copyright Law and Freedom of Speech
In the framework of the Indian Constitution Article 19(1)(a) grants citizens the right to freedom of speech and expression. Digital expressions through memes typically belong under Article 19(1)(a) protection. In Indian legal history courts have managed copyright protections against free speech rights based on two criteria: transformation versus public interest value. The process of striking a balance between creator rights under copyright law and the freedom of creative expression and satire remains essential to maintain democratic principles in society. Courts in India established this practice through transformational use assessments and public interest determination criteria. The protection of creator rights by copyright law stands in opposition to the potential obstruction of creative expression along with satirical content within a democratic nation. The case of Shreya Singhal v. Union of India[5] Though primarily dealt with freedom of speech under Article 19 of the Indian Constitution and unconstitutionality of Section 66A of the IT Act, it reinforced the importance of balancing copyright protection with freedom of expression, a principle relevant to meme creation.
In the case of Super Cassettes Industries Ltd. v. MySpace Inc[6]. The Delhi High Court examined the liability of an online platform for hosting copyrighted content. The court recognized that intermediary liability exists but also acknowledged that fair dealing is a valid defense.
Countries like the United States follow the fair use doctrine under the Copyright Act, 1976, where transformative works such as memes are often protected. The European Union’s Directive on Copyright in the Digital Single Market has created a stricter regime, requiring platforms to filter out copyrighted content. India’s fair dealing provisions are narrower than the U.S. fair use doctrine, making it crucial to assess whether memes qualify as criticism, review, or reporting under Section 52. In Campbell v. Acuff-Rose Music, Inc.[7] the court established the following four-factor test for determining the fair use defence liability:
- The purpose and character of the use, including whether such use is of a commercial nature
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The impact of the use on the potential market for or value of the copyrighted work
In Blackwood And Sons Ltd. And Ors. v. A.N. Parasuraman And Ors.[8], the court emphasized two aspects related to the connotation of the term ‘fair’ in ‘Fair dealing’ –
(i) that in order to amount to unfairness, there must be intention to compete and to gain profit out of such competition
(ii) that unless the motive of the infringer was unfair, i.e., improper or oblique, the dealing would be fair.
The rationale behind the Court is that no one should be enabled to gain financially at the expense of another and fair use is a broad topic that is susceptible to interpretation and further consideration.
In 2013, Christopher Torres, the creator of Nyan Cat, and Charles Schmidt, the creator of Keyboard Cat, sued Warner Bros. and the game developer 5th Cell for copyright and trademark infringement. The lawsuit centered on the unauthorized use of these memes in the video game series Scribblenauts.where it was held that the purpose of creating memes is for fun and as long as the creator does not use them for gaining monetary benefits it is considered fair use. But if it is created for gaining profit without taking permission from the owner of the copyrighted work then it can be an infringement of copyright and such a meme used for commercial exploitation cannot claim defence under fair use as held in the case of Nyan Cat vs. Warner Bros[9].
In another case, Grumpy Cat Limited v. Grenade Beverage, LLC [10]where Grumpy Cat Limited, the company behind the popular meme featuring Grumpy Cat, sued Grenade Beverage for using the cat’s image to market a new cappuccino drink called “Grumppuccino” without permission. The lawsuit resulted in Grumpy Cat Limited winning and receiving compensation for the unauthorized use of their intellectual property.
The Success Kid meme case is Griner v. King[11], filed in the U.S. District Court for the Southern District of Georgia in 2019. The case involved Laney Griner, the mother of Sammy Griner (the child in the Success Kid meme), suing Representative Steve King for using the meme in a fundraising campaign without permission.That lawsuit ultimately resulted in a jury awarding $750 in damages to Griner.[12]
The principle of fair dealing under TRIPS is very similar to the United States concept of fair use. These principles have also been recognized by Indian courts as precedent to determine whether or not an act is fair dealing. The Delhi High Court confirmed the four-factor test for fair use as developed in Campbell’s case[13] and held that the factors cannot be used in isolation but must be analyzed cumulatively to determine whether the concept of fair use can be applied.[14]
Though India does not have any cases related to the memes though Bajaj Autos who are the official seller of the Austrian Brand KTM also filed an FIR against a Facebook page for maligning their image. A meme about KTM motorcycles led to a complaint being filed with the Pune Police’s Cyber Crime Division. The meme suggested that “50% of people who bought Duke are no longer with us,” which damaged the reputation of Bajaj-KTM. The Facebook page responsible for the meme apologized and removed the posts, but no further legal action against the meme creators was reported[15].
Though there have been instances of companies like Zomato using the techniques of memes in order to advertise and actively engage in promoting their business on a meme. The memes are usually based on popular movie characters or images which have attained popularity. Such positive publicity benefits the organization to attain more publicity, and even the owner of the original copyrighted content to receive more viewership of the aforementioned clip/scene/movie. Hence, if the company/organization properly takes the requisite permissions from the owner of the original copyrighted material while making memes, then the company as well as the owner of the copyrighted material can benefit from the same. The same would provide a positive publicity to both the parties, thus establishing a symbiotic relationship. Apart from that, the firms can also prevent unnecessary lawsuits by depending on such mutually rewarding relationships.[16]
Challenges in Regulating Memes
Absence of Clear Guidelines
India’s Copyright Act does not clearly define how parody and satire fit into copyright law. This creates confusion because memes often use copyrighted images or videos in a humorous or critical way. Since there are no specific rules about whether such use is legal, meme creators and social media users may be unsure if they are breaking the law. This legal ambiguity complicates the balancing of creative freedom and safeguarding the rights of copyright holders.
Intermediary Liability
Social media sites such as Facebook, Instagram, and Twitter enable users to post memes, some of which could be infringing on copyright.According to Indian law, such sites are liable for hosting unlawful content unless they come under the purview of Section 79 of the Information Technology Act, 2000. The section grants a “safe harbor” or, in other words, platforms are not held liable if they merely act as intermediaries and adhere to regulations to take down infringing material when informed. In the absence of specific regulations, platforms will risk prosecution or voluntarily take down content to prevent trouble.
Challenges in Enforcement
Memes are highly contagious online, and therefore difficult to trace and stop unauthorized use of by copyright owners. In contrast to conventional copyright infringement, which might involve a single copy of a book or movie, memes can get shared millions of times within hours.This virality renders enforcement almost impossible, since deleting one version does not prevent others from spreading. Due to this, copyright owners find it difficult to safeguard their work, and laws might not prove effective in curbing meme-based infringements. [17]
Role of Artificial Intelligence in Meme Creation
With the advent of AI-generated content, the question arises whether AI-created memes qualify for copyright protection. Traditionally, copyright law only grants protection to works created by human authors. The U.S. Copyright Office and various judicial bodies have consistently ruled that AI-generated works do not qualify for copyright ownership. In India, this remains an evolving legal issue. Moreover, AI tools that generate memes by remixing copyrighted material may inadvertently infringe upon existing copyrights, raising concerns about liability and fair dealing applications.
Evolving Role of Social Media Platforms in Copyright Enforcement
Social media platforms such as Instagram, Twitter, and Facebook play a pivotal role in regulating memes and handling copyright takedown requests. Under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, intermediaries are required to act promptly upon receiving copyright infringement complaints. However, the challenge lies in balancing enforcement with protecting users’ rights to free expression. Automated takedown mechanisms often result in over-removal of content, stifling creativity. Platforms must navigate these challenges while ensuring compliance with Indian laws and maintaining a fair space for digital expression.
The Indian legal status of memes is a convoluted and dynamic one. Although fair dealing provisions provide some safeguard, the lack of specific recognition for parody and satire leaves it in a state of uncertainty. Courts have adopted an ad hoc approach, usually depending on the transformative nature of the work and the reason for which it is being utilized. The absence of legislative certainty makes it difficult for both copyright owners and content creators.
As digital communication keeps changing, there is a need to balance copyright protection and freedom of expression. Identifying parody and satire as valid fair dealing exceptions can bring much-needed certainty and avoid unnecessary litigation. Clearer rules on intermediary liability and copyright enforcement will also assist social media platforms in overcoming legal hurdles while promoting creative expression.
Until there are legislative changes, meme makers must be careful, especially in business settings, to prevent possible copyright infringement. Increased awareness and lobbying for copyright reform will be essential in creating a legal environment that balances intellectual property rights and the dynamic nature of online content creation.
[1] MERRIAM-WEBSTER, Meme, https://www.merriam-webster.com/dictionary/meme (last visited Feb. 27, 2025).
[2] Sindhu Hariharan, Indians Spent Average 30 Minutes Per Day Consuming Memes: Report, TOI, Sept. 1, 2022, , http://timesofindia.indiatimes.com/articleshow/93919788.cms.
[3] Grand View Research, India Digital Media Market Outlook, https://www.grandviewresearch.com/horizon/outlook/digital-media-market/india (last visited Feb. 27, 2025).
[4] India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd., AIR 2013 (NOC) 315 (Del.), 2013 (1) ADR 811, (2013) 1 RECEIVER 557, (2012) 192 DLT 502 (India).
[5] Shreya Singhal v. Union of India, AIR 2015 SC 1523, 2015 AIR SCW 1989, AIR 2015 SC (Crim) 834.
[6] Super Cassettes Indus. Ltd. v. MySpace Inc., (2011) 48 PTC 49 (Del.).
[7] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
[8] Blackwood & Sons Ltd. v. Parasuraman, AIR 1959 Mad 410.
[9] Schmidt v. Warner Bros. Entm’t Inc., No. 2:13-cv-02824-JFW-MRW (C.D. Cal. filed Apr. 22, 2013).
[10] Grumpy Cat Ltd. v. Grenade Beverage LLC, No. 8:15-cv-02063-DOC-DFM (C.D. Cal. filed Dec. 11, 2015
[11] Griner v. King, No. 21-CV-4024 CJW-MAR ”568 F. Supp. 3d 978, (N.D. Iowa 2021)
[12] Cathay Y. N. Smith & Stacey Lantagne, Copyright & Memes: The Fight for Success Kid, 110 Geo. L.J. Online 1 (2021), https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2021/12/Smith_Lantagne_Copyright-Memes.pdf.
[13] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
[14] Tejaswi D. Shetty, Copyright Provisions Pertaining to ‘Internet Memes’ in India, NLIU Cell for Studies in Intellectual Property Rights (May 27, 2022), https://csipr.nliu.ac.in/copyright/copyright-provisions-pertaining-to-internet-memes-in-india/.
[15] Dr. Syed Tabrez Hassan, Negative Effect of Meme Culture: A Case Study of KTM Motorcycle in India, 10 IJRAR 2 (2023).
[16] Memes and Copyright Protection, Markets Screener (Dec. 13, 2021), (last visited Feb. 27, 2025).https://www.marketscreener.com/quote/stock/ZOMATO-LIMITED-125138034/news/Memes-And-Copyright-Protection-37309903/.
[17] Aishwarya K., Memes and Their Protection under Copyright Law, Jus Corpus (Jan. 2023), https://www.juscorpus.com/wp-content/uploads/2023/01/69.-Aishwarya.-K.pdf.
