The trends on Social Media changes with the speed of light but one thing that hasn’t lost its value even after decades is the Social Media’s consumption of memes. Even when someone keeps a distance from the Internet and social media, they must have encountered witty memes in print media or in any marketing advertisements indubitably. That is apparently because memes have tremendous potential in molding ideas and creating a space for conversation.
The meme culture industry exists in the negative spaces of Intellectual Property, areas where creativity and innovation flourish even when they are not safeguarded by IP laws. For Instance, the fashion industry. The fashion cycle is the cause for the fashion sector’s survival throughout these years in IP’s negative space. It is believed that a combination of two systems anchoring, and induced obsolescence helps the sector. Trends are created in anchoring as a consequence of style imitation and imposed obsolescence guarantees that the market is flooded with the imitated designs. This renders the designs unappealing and increases market demand for more innovative and creative ideas.  However, memes once stolen and reshared without credits fail to establish a similar circular loop of demand after series of copying and imitation of the same meme. Once the meme becomes viral after a series of resharing and remixing, most often the original meme creator is not given the credits.
Lord of memes or Burglar of memes?
The fine line of difference between sharing a meme and infringing someone’s Intellectual Property Rights is most often not recognized. Most of the time, these meme-lifters gain more followers and social media likes than the original content creator. Elliot Tebele, popularly known by his Instagram username ‘F***Jerry’has gained millions of followers in the past decade by merely meme lifting and resharing memes without giving credits.
By sharing these memes without credits one can infringe the owner’s right in the following ways:
- i) When the expressions used in the meme, are in the form of art illustration, photograph, video, cinematographic scene, symbol, emoticon, etc. and the content used is some other person has copyright over the content used along with their own caption.
- ii) When the meme is reshared as it is without giving proper credits.
In both these cases, the infringement is subject to the Copyright laws.
What does Law have to say about these issues?
In an internet meme, one is essentially using someone else’s work for his purpose, without the permission of the owner of the copyright of the original work. This would, in most circumstances, be a clear case of infringement. In the case of memes however, the same may not be entirely accurate, as the purpose of creating memes varies. Nevertheless, only those memes that are created for the purpose of fair dealing may be included in the ambit of the fair use clause of the Indian Copyright Act.
We have come across the Constitutional and Criminal misuse of Memes every now and then but the Intellectual Property law perspective is quite complicated and unexplored. The eligibility for IP protection for Meme creators falls within the definition of artistic works as specified by Section 2(c) of the Indian Copyright Act, 1957. A copyright infringement or invasion happens when a photograph or video footage is disseminated without owner’s or the content creator’s permission and qualifies under Section 2 (m) (i) of the Indian Copyright Act, 1957 which defines “infringing copy.”
Section 14 (d) (i) of the Indian Copyright Act, 1957 enables “to make a copy of the film, including a photograph of any picture constituting part thereof…” This implies that the production of a meme should be substantiated by prior consent from the individual who owns the copyright of the content to be used as meme material. Originality, fixation, and fulfillment of the idea-expression dichotomy are essentials required for copyright protection.
In situations of copyright infringement, the legal theory of “fair use” comes to the rescue. Fair use doctrine is defined under Section 54(1) of Indian Copyright Act, 1957 which mentions “fair dealing with any work”. It is a valid defense in instances where copyright infringement might otherwise be the result. A meme posted on social media is regarded as a derivative work, and only the copyright owner has the lawful right to produce one. The owner’s copyrights, on the other hand, are not irrevocable and absolute.
So far, no lawsuit over meme copyright has been filed in India and hence the jurisprudential aspect is unexplored. The lawsuit of Warner Bros. in the United States substantiates one such instance of copyright infringement, in which the company utilized the popular memes Nyan Cat and Keyboard Cats as creatures in their video game Scribblenauts. Warner Bros. was forced to pay a $100 million fine for exploiting a racist meme.
Another meme lawsuit filed was by the owner of the Grumpy Cat meme. Grumpy Cat Limited reportedly filed a lawsuit against the founders of Grenade, a coffee chain based in the United States, for violating an arrangement over the cat’s picture. The firm just had the license to use the cat to promote their “Grumppuccino” frozen beverage, but it also marketed other Grumpy merchandise. The Grumpy Cat limited was awarded $710,000 as damages for copyright infringement.
An American Court in Campbell v. Accuff – Rose Music laid down the Four Factor Test in relation to fair use and also stated that factors should not be limited to assessing the damage caused to the copyright holder in the market but should also evaluate the adverse impact on potential markets.
The way forward
The lack of awareness and sensitization is one of the key factors contributing to the continuation of Copyright infringement of memes. More users need to be made acquainted with the existing laws and the principles of resharing someone’s creation with proper credits. Furthermore, buying copyrights for meme creation templates including photographs, video clips, etc. must be made more accessible and feasible to buy for individuals too.
Social Media applications in their terms and conditions of operation deny responsibility for any future liability arising from copyright infringement. New legislation needs to be introduced for the liability of social media applications. Furthermore, the social media companies can even ask their users if the content they are posting is their original work or not and in case it is not they can buy its copyrights and upload the certificate too. These steps might not be the most convenient choice in the time where thousands of contents is shared on a daily basis. These provide difficult and complicated solutions, but they are no more difficult than any of the complexities that intellectual property laws have encountered.
Exemplary measures need to be set not only for the Giant Hub Companies but also against individuals benefiting from infringing the creator’s copyrights. In today’s complicated online presence, remedies must take into account the particular characteristics of social media, such as its rapid distribution and capacity to reach a global audience instantaneously, and introduce legislation according to the needs. Hence, the next time you come across a meme make sure the credits are given to the creator.
Shambhavi. G, Intern
Guided by: Jothsna Chikkodi
 Kara Rogers, Meme Cultural Concept, Britannica (March 18, 2021)
 Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92(8) VA. L. REV. 1687, 1689 (2006).
 Raustiala & Sprigman, supra note 4, at 1722.
 Nick Statt, Fuckjerry founder apologizes for stealing jokes and pledges to get creator permission, THE VERGE ,https://www.theverge.com/2019/2/2/18208446/fuckjerry-elliot-tebele-meme-joke-aggregator-repost-newpolicy-change.
 Gautam Bhatiya, The Supreme Court and Memes, Indian Constitutional Law Philosophy( May 14, 2019)
 DAVID VAVER, PRINCIPLES OF COPYRIGHT –CASES AND MATERIALS 14 (2002), https://www.wipo.int/edocs/pubdocs/en/copyright/844/wipo_pub_844.pdf.
 Emma Woollacott, Warner Brothers Sued For Infringing Cat Meme Copyright, Forbes (May 03, 2013, 5:48 AM EDT), https://www.forbes.com/sites/emmawoollacott/2013/05/03/warner-brothers-sued-for-infringing-cat-meme-copyright/?sh=48403b612e34.
 Grumpy Cat wins $710,000 payout in copyright lawsuit, BBC News ( Jan. 24 2018) https://www.bbc.com/news/world-us-canada-42808521.