INTERNET MEMES AND COPYRIGHT LAW: A COMPARITIVE ANALYSIS

Author: Sneha Vijayvargiya, Indore Institute of Law

ABSTRACT

Digital communication is dominated by Internet memes; however, their creation relies mostly on unauthorized reproduction. Thus, copyright law contains many questions surrounding Internet memes. This paper reviews the copyright implications of Internet memes, using comparative doctrine in all three legal systems (United States, European Union, and India). The first section establishes that the reproduction and adaptation of protected works, which make up Internet memes, constitute prima facie copyright infringement under Indian and American law. The second section looks at potential defences available to meme creators, focusing particularly on fair use under section 107 of the Copyright Act (U.S.), as it relates to memes. The comparative law analysis indicates that Indian Copyright Law contains a significant legislative gap, since there are no specific provisions for parody, for transformative uses, or for user generated content. Thus, the Indian copyright system is far less favourable than the American and European systems regarding Internet memes. Finally, using the non-commercial user-generated content exceptions under the Canadian Copyright Modernization Act as a model, this paper suggests that legislative reforms in India are required to better create a balance between the interests of copyright owners and the realities of participatory culture in the digital age.

Keywords: internet memes; copyright infringement; fair use; fair dealing; transformative use; parody; user-generated content; comparative copyright law; Indian Copyright Act; digital culture

INTRODUCTION

Modern-day Internet memes consist of images, videos, and/or texts which have been altered and distributed on electronic media for the purposes of humor, criticism, and commentary. The concept of a “meme” was introduced to the public by evolutionary biologist Richard Dawkins in his book, The Selfish Gene (1976), where he characterizes memes as cultural units of transmission (analogous to biological genes). Memes have since morphed into some of the most widely-used forms of communication among users of various social media platforms like Twitter (now called X), Instagram, Reddit, and WhatsApp.

The basic legal issue with respect to the creation of memes lies in the overwhelming majority of memes being created by “borrowing” material protected by copyright. For example, the Distracted Boyfriend meme uses an unlicensed stock image, the Drake Hotline Bling meme makes use of a screenshot from a copyrighted music video, and the Woman Yelling at Cat meme utilizes an unlicensed still image from the reality TV series The Real Housewives of Beverly Hills in conjunction with an unlicensed image of a cat. In each of these cases involving copyright infringement, the original author/creator of the copyrighted material that was used to create the meme holds a copyright on the underlying work, and the creator of the meme has copied and changed the work without obtaining approval from the copyright owner.

There is a major conflict between copyright law (which gives copyright owners rights over their own original works, including the right to be given credit and licence their work) and the ability to use creative works for parodies, commenting on and transforming those works into new forms of creativity. This disagreement did not start with the Internet, but the use of memes on the Internet has grown to a level never before seen. While copyright litigation in the past may have only had a small number of acts of copying by a single party, now with the Internet the number of acts of copying by many parties on many jurisdictions is well into the millions, and the vast majority of these copying acts are done by non-commercial and anonymous individuals.

In the following sections of the manuscript, first, there is a critical review of the literature. Second, the research objectives and questions are discussed. After these are the five analytical sections of the manuscript: (1) what are memes and how do copyright law apply to them; (2) prima facie evidence of copyright infringement; (3) fair use as an infringement defence under U.S. copyright law; (4) fair dealing as an infringement defence under Indian copyright law, and (5) a comparative and jurisdictional analysis of copyright laws which highlights shortcomings in Indian copyright laws. Finally, the paper provides recommendations for changes in legislation.

LITERATURE REVIEW

A. Foundational Works on Meme Culture

Limor Shifman’s Memes in Digital Culture (MIT Press, 2014) is the leading academic book regarding internet memes and offers a clear distinction between “viral content” (content that is shared without modification) and “memes” (content that allows for modification). Shifman’s distinction is very important when it comes to legal issues related to both types of cultural expression. An edited book entitled Cutting Across Media, published in 2011 by Kembrew McLeod and Rudolf Kuenzli, provides a context in which to understand memes as part of a larger history of remix culture; the book argues that all forms of digital creativity are derivative of some other form(s) of expression.

B. Copyright Scholarship Regarding Transformative Use

The basis for the legal definition of transformative works was established by Professor Pierre Leval in his influential article Toward a Fair Use Standard, published in Volume 103 of the Harvard Law Review in 1990. In this article, Professor Leval stated that when assessing whether a secondary use, such as remixing a piece of music or creating a parody of a film, should receive protection under the fair use standard, the critical question to ask is: does the secondary use add something (in the form of new expression/meaning/message) to the original use? The U.S. Supreme Court cited, and agreed with, Professor Leval’s opinion in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The works of Rebecca Tushnet have built on Professor Leval’s analysis to argue that non-commercial, expressive uses of copyrighted materials should also be eligible for protection.

C. Comparative Studies

William W. Fisher III’s Promises to Keep (2004) includes a complete critique of the existing Copyright system and provides alternatives for compensating creators of digital media. The Indian law text Law of Copyright (2nd ed.) by V.K. Ahuja covers the fair dealing exception included in Section 52 of the Indian Copyright Act of 1957 and does include dedicated analysis relating to memes, but will not specifically address the impact of memes on copyright law. The lack of dedicated scholarship on memes and Indian Copyright Law presents a void this research will attempt to fill.

RESEARCH OBJECTIVES

This research is directed by the following objectives:

To determine whether internet memes, as a class of derivative digital media, infringe on the copyright in the underlying works from which internet memes are derived.
To conduct a comparative analysis of the forms of defense available to meme creators under the fair use defense included in the United States Copyright Law of 1976, and the fair dealing exceptions included in the Copyright Act in India.
To perform a comparative analysis of the treatment of copyright-related questions for memes between the United States, the European Union, and India.
To identify gaps in Indian Copyright Law with respect to meme culture and offer suggestions for normative legislative reform.

RESEARCH METHODOLOGY

This research paper uses Doctrinal Methodology in legal research. Doctrinal legal research refers to research that is based primarily on, and involves the systematic study of, legal rules found in primary legal documents (called “Primary” Sources) i.e., statutes enacted by Parliament (laws) and case law (court decisions), and constitutional provisions and legal commentary, law review articles and other Official Reports (Secondary Sources), and that describes, explains and assesses the law as it exists today and proposes normative improvements.

The research paper employs the following legal authority as Primary Sources:

Digital Millennium Copyright Act of 1998 (United States); Section 512 (safe harbour)

Information Technology Act of 2000 (India); Section 79

United States Supreme Court, United States Court of Appeals, and European Community Court decisions.

In addition, the research paper employs a comparative methodology between the United States, European Union and India regarding the laws concerning Transformative Use and Parody. The comparative methodology uses the Functional Method, which compares laws based upon the social problems that need to be solved by the law rather than their formal classification.

MEMES AND COPYRIGHT: A PRIMER

Before looking into infringement, we need to consider two preliminary issues: first, whether the underlying work that gives rise to a meme has copyright protection; and second, whether the meme itself can qualify for copyright protection independently.

With respect to the first question, the answer will almost always be yes, as photographs, video clips and graphic images the raw material for most memes are, respectively, “artistic works” and “cinematographic films” under section 13 of the Copyright Act, 1957, and “pictorial, graphic and sculptural works” or “audiovisual works” under section 102 of the United States Copyright Act of 1976. The threshold for originality is low: according to the Supreme Court of India decision in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, a work is original if it is created by an author and exhibits some level of skill, effort, and judgement on the part of the author. Likewise, the United States Supreme Court ruling in Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991), holds that originality necessitates only that some minimal creativity had been exhibited by the author.

The answer to the second question is much more complex. The attribution of copyright protection under a meme might arise based on whether the textual overlay, arrangement of elements, or modification of the underlying work is sufficiently original in character. Copyright, as a result, would only protect the meme creator’s original contribution and not the underlying works. Therefore, the meme creator will have no right to use their own copyright to defend against an infringement claim from the original owner of the copyright.

The Elements of a Prima Facie Case for Copyright Infringement

A copyright is infringed when a person engages in any of the activities that are restricted by the copyright without the copyright owner’s permission (i.e., a licence). Some examples of such activities are provided in subsection 14 of the Copyright Act 1957: reproducing the work and making any derivative work. Copyright is said to have been violated by a person doing anything that constitutes a violation of one or more of the copyright owner’s exclusive rights under one of the sections of the Copyright Act 1957 without the copyright owner’s permission.

When a meme is created, often the process consists of joining two types of acts; one being the reproduction of the original image or video and act number two will be the adaptation of the image or video (an example being the addition of a caption). Therefore, on a basic level, virtually all memes can be assumed to infringe on copyright. The ultimate question is if a defence to infringement is available.

Fair Use Defence to Copyright Infringement in US Law

The doctrine of fair use as a defence to copyright infringement is codified in Section 107 of the United States Copyright Act of 1976. This section states that the use of a copyrighted work for certain purposes is not considered copyright infringement (e.g. criticism, commentary, news reporting, teaching, scholarship or research). The fair use analysis process consists of the following four elements:

The purpose and character of the use, including whether the use is commercial or a nonprofit educational use

The nature of the original copyrighted work

The amount and substantiality of the portion used as compared to the original work as a whole

The effect of the use on the potential market for, or the value of, the original copyright work.

Of the four major factors considered when establishing whether use of a copyrighted work is fair, the first factor is the key concern relative to meme activity. According to the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), a work may be considered transformative if it adds new information or meaning (or adds a new ‘message’) in addition to the purpose of the original work. In Campbell, the Court determined that the 2 Live Crew parody of the song ‘Oh Pretty Woman’ was a transformative use of Roy Orbison’s material, and thus entitled to the fair use defence. In establishing that the 2 Live Crew parody was transformative of Roy Orbison’s material, the Court stated that a work is transformative if it creates new content and has no reputation connection to the prior original work.

The application of the Campbell framework to memes presents ambiguity as there are numerous memes that are considered to be transformative. Memes use a well-known image as the creative medium for providing either social commentary, political critiques and/or various fun expressions clearly unlike any aspect of the work for which that image was initially taken. The Distracted Boyfriend meme is a representative example of using the established image as a medium for creating and disseminating social and political commentary that is distinctly different from the purpose of the original work (i.e., the Distracted Boyfriend meme creation is based solely upon the content generated by the meme creator).

As stated previously, not all memes qualify as legally “transformative.” For example, if a meme merely copies a copyrighted picture and has a funny text, it may not meet the Campbell criteria because it doesn’t criticize or comment on the original work. In Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), the Second Circuit ruled there was sufficient amount transformation without any criticism on the original and that a broader aesthetic transformation can meet this requirement. If a court applies the more liberal interpretation to memes, their protection under copyright law would be significantly expanded.

Indian Law: Fair Dealing

The Indian Copyright Act, 1957, does not refer to the term “illegal use”; instead, Section 52 provides for an exhaustive list of activities that will not be considered infringing activity. Examples of these exceptions are: providing for fair dealing to use a literary work for (a) Private Use; (b) Criticism or Review; and (c) Reporting of Current Events.

India’s Section 52 contains two substantial differences from the U.S. Fair Use doctrine that render it far less meme-friendly. First, the Indian copyright regime is exhaustive: a work must fit an enumerated definition of ‘fair use’ in order to be protected. There is no standard to allow for ‘transformative’ uses. Second, the Indian Copyright Act provides no explicit exception for parody, which is one of the most common themes of memes that comment upon social or political issues. This absence leaves a gaping hole in Section 52 for meme creators turning to Section 52 for a fair use defence.

The nearest comparable defence available to an Indian meme creator is criticism or review under Section 52(1)(a)(ii) or private use under Section 52(1)(a)(i). Unfortunately, both of these exceptions are quite limited. The criticism or review exception is generally construed to require that the user base their commentary on the original work itself rather than solely make use of the work to express unrelated commentary. The private use exception permits personal copying but does not allow for the public display of memes on social media that distinguishes memes.

The absence of a parody exception or a general transformative use standard in Indian copyright law is particularly striking given the rich tradition of political satire and social commentary that has always been part of Indian public discourse. Courts in India have not yet authoritatively addressed the question of whether meme creation can fall within any existing Section 52 exception. This judicial silence compounds the legislative gap and leaves meme creators in a state of legal uncertainty. Until the Indian Parliament amends the Copyright Act to introduce a parody exception or an open-ended fair use standard comparable to the U.S. model, meme creators in India will continue to operate in a legally precarious environment.

Comparative Analysis and the Gap in Indian Law

An analysis of the laws indicates that, among the three jurisdictions examined, India’s copyright framework is the least accommodating of meme culture. Fair use doctrine in the United States allows greater space to meme creators due to its flexible four-factor test and its reliance on transformative works. In Deckmyn v. Vandersteen, C-201/13 (CJEU, 2014), the European Court of Justice recognized parody as a specific exception under the Information Society Directive and ruled that parody was to evoke the original work while remaining noticeably different from it and was thus accepted as an expression of humour or mockery. This ruling allows specific exceptions for parody in certain EU member states.

Canada always stands out for the most suitable example of what legislative reform could bring in this respect. The Copyright Modernization Act enacted specific exceptions for “non-commercial user-generated content” in Section 29.21 of the Canadian Copyright Act under Bill C-11; referred to in common parlance as the ‘mash-up’ or ‘UGC’ exception, it is the capacity for individuals to create new works of non-commercial nature from copyrighted works by expressly acknowledging the source and ensuring that the new work does not have a negative effect on the market for the original.

The Indian Parliament should consider adopting a similar provision. A reformed Section 52 could incorporate: (i) an explicit parody and satire exception; (ii) a non-commercial user-generated content exception modelled on the Canadian approach; and (iii) a general transformative use standard similar to the U.S. four-factor test. These amendments would bring Indian copyright law in line with contemporary digital realities while still protecting the legitimate interests of original copyright holders.

DISCUSSION

The foregoing analysis reveals a fundamental tension at the heart of copyright law as applied to internet memes: the law was designed to protect creators of original works, yet the participatory culture of the digital age is built upon the very act of borrowing, remixing, and recontextualising those works. This tension is not merely theoretical it has direct implications for millions of ordinary internet users who create and share memes daily, often without any awareness of the legal risks they may be incurring.

The comparative analysis undertaken in this paper demonstrates that the United States has, through judicial evolution rather than legislative design, arrived at a relatively workable framework for meme creators. The transformative use doctrine as elaborated in Campbell v. Acuff-Rose and Cariou v. Prince provides courts with sufficient flexibility to assess meme creation on a case-by-case basis. That said, the open-ended nature of the four-factor fair use test creates its own form of uncertainty: without bright-line rules, meme creators cannot know in advance whether a particular use will qualify as fair. This unpredictability, while perhaps tolerable in a jurisdiction with a robust litigation culture, may prove especially burdensome to non-commercial individual creators who lack the resources to defend copyright claims.

The European Union’s approach, anchored by the Deckmyn ruling, occupies a middle ground. The CJEU’s recognition of parody as an autonomous concept of EU law provides a principled basis for protecting satirical memes, yet the patchwork implementation across member states means that protection is uneven in practice. The directive-based framework also leaves member states considerable discretion in how they transpose parody exceptions, resulting in inconsistency across the single digital market a limitation that becomes increasingly apparent in the age of cross-border viral content.

India’s position is the most problematic of the three. The exhaustive character of Section 52 of the Copyright Act, 1957, means that any creative use not explicitly enumerated is presumptively infringing. This structural rigidity may have been defensible in a pre-digital era when the categories of creative expression were relatively stable and the volume of secondary uses was manageable. In the age of social media, however, it has become a significant obstacle to lawful creative participation. The absence of any judicial guidance on meme-related copyright questions compounds the problem, leaving a legal vacuum that neither creators nor rights-holders can navigate with any confidence.

A critical observation emerging from this study is that the inadequacy of Indian copyright law with respect to memes is not simply a technical deficiency it reflects a broader failure to account for the cultural and communicative significance of participatory digital expression. Memes are not merely entertainment; they serve as vehicles for political dissent, social critique, and community identity. Restricting their creation through an overly rigid copyright framework risks chilling legitimate speech, particularly in the context of political commentary and satire where memes have become a dominant form of public discourse.

The Canadian model examined in this paper offers a promising template for reform, precisely because it addresses this concern directly. By creating a specific non-commercial user-generated content exception, Canada has acknowledged that the ordinary internet user occupies a different legal and moral position from a commercial exploiter of copyrighted works. The conditions attached to the exception non-commercial purpose, attribution where reasonable, and no substantial adverse market effect strike a principled balance between the interests of original creators and the expressive needs of a participatory digital culture. India would do well to adopt a similar approach, tailored to its own constitutional framework and the particular character of Indian digital expression.

CONCLUSION

In this essay, we have explored the copyright status of Internet memes, focusing on the relationship between United States and Indian copyright law. The analysis indicates that most memes are sufficient prima facie infringements of copyright in the works upon which they are based because they reproduce and adapt copyrighted material (in this case, copyrightable material) without the approval of the copyright owner.

The question that is most open to interpretation is whether a defence will apply. As regards the United States, the fair use doctrine particularly when viewed in the light of Campbell v. Acuff-Rose and its consideration of transformative use provides some level of meaningful, though potentially ambiguous, protection to meme creators. For example, meme creators may rely on the fair use doctrine to help them assume that their reproduction of copyrighted material, for the purpose of creating new expressions or commentary, will suffice as fair use, if they do not earn any money from their meme and their meme does not compete with the original in the marketplace.

By contrast, the legal status of meme creators in India is considerably less favourable than in the United States. The Indian Copyright Act, 1957, and specifically under Section 52, fails to provide for parody or user-generated-content exclusions which would otherwise provide ample defence to meme creators. Similarly, the categories of exception provided in the Copyright Act, 1957, are, for the most part, simply too narrow to cover all of the ways that memes can be created. The lack of settled judicial interpretation means that there continues to exist an unrealistic level of ambiguity within the law, which creates disincentives for digital creativity.

The path forward lies in legislative reform. India’s experience with the internet and digital culture has grown exponentially since the Copyright Act was last meaningfully amended in 2012. An amendment introducing a parody exception, a UGC exception, or a flexible fair use standard ideally all three would meaningfully close the gap between Indian copyright law and the digital realities of meme culture. The Canadian model, with its explicit non-commercial user-generated content exception under Section 29.21 of the Copyright Act, offers a workable and balanced template that Indian lawmakers could readily adapt.

References

Books

Dawkins R, The Selfish Gene (Oxford University Press 1976).
Fisher WW III, Promises to Keep: Technology, Law, and the Future of Entertainment (Stanford University Press 2004).
McLeod K and Kuenzli R, Cutting Across Media: Appropriation Art, Interventionist Collage, and Copyright Law (Duke University Press 2011).
Shifman L, Memes in Digital Culture (MIT Press 2014).

Journal Articles

Leval PN, 'Toward a Fair Use Standard' (1990) 103 Harvard Law Review 1105.
Tushnet R, 'Payment in Credit: Copyright Law and Subcultural Creativity' (2007) 70 Law and Contemporary Problems 135.