This Article is Written by Aarohi Prakash, Student of CMR University.
Introduction to Meme Culture and Copyright Concerns
Memes, with their humorous images, GIFs, videos, and text overlays, are now commonplace communication in today’s digital age. Having originated from a variety of internet subcultures, memes have quickly spread across social media websites such as Instagram, Twitter, and Reddit, often becoming viral sensations that capture millions of social media fans across the globe. Their ability to provide humor, social commentary, and common experiences makes them as shareable as possible and hence quickly spread and duplicated. However, in spite of appearing so frivolous, memes raise serious questions regarding intellectual property (IP) rights and copyright ownership that are often lost in the digital world.
The primary problem with copyright occurs when memes use copyrighted content like images, pieces of a film, or artwork without obtaining proper permission from the creators. According to copyright law, unauthorized use, copying, or transformation of copyrighted material may be considered an infringement of the rights held by the owner of the content[1]. Although meme creators often claim protection under the doctrine of fair use, which permits limited use of copyrighted material for purposes of comment, criticism, and satire, the use of fair use in memes is a legally uncertain area[2]. Courts evaluate fair use by weighing considerations such as the purpose and character of the use, the nature of the original work, the quantity of the content used, and the potential effect on the market, and it is hard to conclude whether the meme creators are protected from liability. A second complexity arises when memes are commercialized, especially when brands or influencers take viral content and use it for advertising without the appropriate permissions. In such a scenario, commercialization of memes becomes problematic in terms of the owner of the original content being entitled to payment or credit[3]. Furthermore, the decentralized nature inherent in meme culture makes it difficult to trace the origin of a meme, thus making it difficult to identify rightful ownership and uphold copyright claims.
The continuous development of meme culture highlights the inherent tension between intellectual property rights and creative freedom in the digital world. Legal frameworks are slowly adapting to these new challenges; however, striking a reconciliatory balance between the rights of copyright owners and the preservation of the spirit of online creativity is a daunting task.
Ownership of Original Content in Memes
Memes, characterized by their humorous and viral nature, often rely on modifying or repurposing copyrighted material such as photographs, film stills, video clips, and other artistic works. The original creators of these underlying works—whether they are photographers, filmmakers, or artists—retain copyright over their content. Copyright law grants creators exclusive rights to reproduce, distribute[4], and adapt their works, which means that any unauthorized use, including the transformation of these works into memes, may amount to copyright infringement.
When memes incorporate copyrighted content without permission, they potentially violate the intellectual property (IP) rights of the original creators[5]. While memes often modify the original work by adding captions, altering visual elements, or recontextualizing the content, such modifications do not always qualify as “transformative” under copyright law. For a meme to be considered transformative, it must add new expression, meaning, or message that fundamentally alters the original work. If the changes are minimal or merely humorous without significantly transforming the source material, the meme is likely to fall under unauthorized use, making it susceptible to copyright claims.
Widely circulated memes that gain commercial value further complicate ownership issues. When monetized through merchandise, licensing, or advertisements without the original creator’s consent, it infringes on their rights and deprives them of rightful compensation. This commercial exploitation increases the risk of legal action, as creators may pursue damages for unauthorized use and monetization. The viral nature of memes on social media complicates identifying and enforcing copyright ownership, making it difficult to trace the original source and leading to ambiguity in ownership claims. While some jurisdictions recognize fair use or fair dealing exceptions, these defenses depend on factors such as the purpose of use, the amount used, and the impact on the original work’s market value. As meme culture continues to shape digital media, legal frameworks must adapt to balance creative expression with protecting original content creators, ensuring recognition while accommodating the participatory nature of internet culture.
Transformation and the Fair Use Doctrine in Memes
Memes often use copyrighted works—such as images, movie stills, or video clips—by adding humorous captions, modifications, or commentary. This process may qualify as “transformative use,” a key factor in fair use analysis. Transformative use occurs when the new work adds a different purpose, character, or message, providing fresh meaning or insight. By incorporating satire, criticism, or humor, memes often transform the original content, potentially meeting the criteria for fair use.The fair use doctrine, codified under Section 107 of the U.S. Copyright Act (17 U.S.C. § 107), provides exceptions to copyright infringement by considering four primary factors:
- Purpose and Character of the Use – Courts evaluate whether the meme’s use of the original work is commercial or non-commercial, as well as whether the work has been sufficiently transformed to serve a new and distinct purpose. Memes often fall under criticism, commentary, or parody, which are favored under fair use, particularly if the transformation adds societal value.
- Nature of the Copyrighted Work – This factor considers whether the original work is factual or creative. Courts tend to favor fair use for factual works, although creative works can still qualify if the use is transformative. Since memes typically rely on creative works, courts assess whether the transformation justifies the use.
- Amount and Substantiality of the Portion Used – This factor measures how much of the original content has been used. Memes often use small portions or static frames of movies or images, which supports fair use. However, using the “heart” or most recognizable aspect of a work may weigh against fair use.
- Effect on the Potential Market – Courts assess whether the use of the original content in memes affects the market for the copyrighted work. Since memes rarely serve as substitutes for the original work and typically do not diminish its commercial value, they often meet this criterion.
Courts have recognized that memes, by adding humor, criticism, or commentary, often pass the threshold for transformative use. In cases involving parodies, such as Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the U.S. Supreme Court emphasized that parody and critical commentary can qualify as fair use because they provide new expression and meaning. Although meme-related cases remain sparse, similar principles apply in evaluating whether the meme adds commentary or social critique to the original work[6].The viral nature of memes makes it unlikely that their distribution will undermine the commercial market for the original work[7]. Memes, often serving comedic, educational, or social commentary purposes, rarely act as substitutes for the original content. Courts typically view this minimal market impact favorably, strengthening the argument for fair use and transformative use in memes.
Legal Disputes and Precedents in Meme Copyright
The rise of meme culture has led to high-profile legal disputes where original creators of copyrighted content have sought compensation for the unauthorized use of their work in viral memes. These lawsuits often arise when copyrighted images, videos, or audio clips are repurposed into memes without the consent of the original rights holders. Content creators, including photographers, filmmakers, and artists, have increasingly turned to legal action to assert their intellectual property (IP) rights[8]. For instance, notable cases have involved professional photographers suing for the unauthorized use of their images in popular memes, arguing that such usage constitutes copyright infringement and diminishes the commercial value of their work. In some cases, creators have claimed not only monetary damages but also injunctive relief to prevent the further circulation of the infringing content.
Judicial interpretation of meme copyright disputes varies significantly across jurisdictions, making the outcomes of these cases unpredictable. In the United States, for example, courts often rely on the fair use doctrine under Section 107 of the U.S. Copyright Act to determine whether the use of copyrighted material in memes is permissible. Courts evaluate factors such as the purpose of the use, the nature of the copyrighted work, the amount used, and the effect on the market value[9]. If a meme is deemed transformative by adding new meaning, commentary, or humor, courts may uphold fair use. However, if the meme closely resembles the original work without significant alteration, it is more likely to be considered infringement.
The United Kingdom and the European Union apply stricter interpretations of copyright exceptions. Under the EU Directive on Copyright in the Digital Single Market (Directive 2019/790), exceptions for parody, pastiche, and caricature are limited. Courts in these jurisdictions often assess memes rigidly against statutory exceptions, offering less flexibility than the U.S. framework. As a result, a meme may be legal in one country but infringing in another, creating uncertainty for creators, platforms, and users across multiple jurisdictions.
As meme-related copyright cases gain traction, courts are establishing precedents that will shape the future of digital content usage. High-profile cases involving prominent memes have highlighted the tensions between protecting creators’ rights and preserving internet culture. These precedents are likely to influence how future courts balance the interests of original creators with the evolving nature of online expression, potentially encouraging platforms to implement more stringent content moderation practices to mitigate legal risks[10]. However, as judicial opinions continue to diverge globally, meme copyright disputes will likely remain a complex and evolving legal battleground.
Public Domain and Creative Commons Content in Memes
Public domain and Creative Commons licenses play a significant role in the creation and sharing of content, including memes. Public domain content consists of works that are not protected by copyright, either because their copyright has expired, the creator has explicitly dedicated them to the public, or they were never eligible for copyright protection[11]. Public domain content can be used, modified, and distributed freely without permission or attribution, making classic artworks, literature, and historical photographs valuable resources for creators. In contrast, Creative Commons (CC) licenses allow creators to grant specific usage rights while retaining some control over their work.
These licenses range from very permissive (such as CC0, which places works in the public domain) to more restrictive versions that require attribution, prohibit commercial use, or prevent modifications. For meme creators and digital artists, understanding these licensing terms is crucial to ensuring they use and share content legally[12]. For example, a meme based on an image with a CC BY license must provide proper credit to the original creator, while a meme using a CC BY-NC image cannot be used for commercial purposes.
Creators can freely make and share memes using public domain and Creative Commons content without infringing copyright laws. However, it’s crucial to check licensing terms, as misuse—such as failing to provide required attribution—can still lead to legal issues. Understanding these distinctions helps creators navigate the digital space responsibly.
Social Media Platform Liability for Copyright Infringement
Social media platforms that host memes or user-generated content may be held liable for copyright infringement if they do not adequately respond to takedown notices filed by copyright holders. Under the Digital Millennium Copyright Act (DMCA)[13]platforms are required to comply with takedown requests that identify infringing content. Failure to act upon valid takedown notices can result in platforms losing their “safe harbor” protection, thereby exposing them to direct or secondary liability for copyright infringement. Since memes often repurpose copyrighted material (such as images, videos, or audio), platforms that host these memes must balance between protecting intellectual property rights and fostering creative expression.Section 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230, offers broad immunity to online platforms from liability for content posted by third-party users. This provision generally protects platforms from being treated as publishers or speakers of the content they host, shielding them from most civil liabilities arising from user-generated content. However, Section 230 explicitly excludes immunity from intellectual property claims, including copyright infringement. Courts have consistently held that Section 230 does not provide a defense against claims brought under the Copyright Act. This means that platforms cannot rely on Section 230 to evade liability if they fail to comply with DMCA takedown procedures or if they knowingly facilitate copyright violations.If a platform ignores or inadequately processes copyright takedown requests, it may face legal action from content owners. Platforms that derive revenue from infringing content, such as through advertising or subscriptions, may also be vulnerable to contributory or vicarious liability[14]. Moreover, if a platform knowingly permits or encourages copyright infringement, it may lose its safe harbor status under the DMCA, significantly increasing its exposure to legal risk. As a result, platforms must maintain robust content moderation and takedown mechanisms to minimize liability and comply with copyright law.Judicial interpretations have underscored the importance of platforms maintaining effective policies to address infringement. Courts have emphasized that platforms must act expeditiously to remove infringing content upon receiving proper notice. Failure to do so can lead to substantial financial penalties and reputational damage. To mitigate this risk, platforms often implement automated detection technologies, such as content recognition algorithms, to identify and remove potentially infringing material proactively.
Legal Implications for Meme Creators
Meme creators often modify or repurpose copyrighted content, such as movie scenes, photographs, or music, to create humorous or satirical content. While this practice is widely accepted in online culture, it raises significant legal concerns, particularly when the modified content is monetized. Under copyright law, the original content creator retains exclusive rights to reproduce, distribute, and publicly display their work. If meme creators generate revenue through advertising, merchandise, or other monetization methods, they may be subject to copyright infringement claims[15]. Courts assess whether the meme qualifies as a “transformative work” under the fair use doctrine, which considers factors such as the purpose of use, the nature of the copyrighted work, the amount used, and the impact on the market value of the original content. However, if a meme does not meet the threshold for fair use, creators risk liability, which may result in statutory damages, injunctions, and even takedown orders.
Users who share or repost memes, especially on social media platforms, may unknowingly contribute to copyright infringement. While casual sharing of memes for non-commercial purposes is generally considered low-risk, repeated or large-scale dissemination may raise legal concerns. If a meme contains copyrighted content and is widely reshared, it can amplify the economic harm to the original creator. Additionally, if a user shares a meme on a platform that monetizes content, such as YouTube or Instagram, they may indirectly participate in generating revenue from copyrighted material. This scenario raises questions of secondary liability, where users could be held accountable for contributing to or facilitating copyright infringement. Although platforms often protect users under the “safe harbor” provisions of laws like the Digital Millennium Copyright Act (DMCA), users may still be required to comply with takedown notices or risk account suspension and potential legal action.
The viral nature of memes complicates the enforcement of copyright laws, as content spreads rapidly across multiple platforms. This raises broader concerns about balancing the protection of intellectual property rights with the preservation of internet culture and freedom of expression[16]. As digital platforms implement stricter content moderation policies and automated copyright detection systems, meme creators and users may face increased scrutiny, resulting in greater awareness of the legal risks associated with resharing and monetizing copyrighted content.
Future of Meme Copyright Regulations
The widespread availability of online content, especially memes, has fueled debates regarding the overhaul of copyright legislation to more suitably respond to the changing digital environment. Memes, through the reappropriation of copyrighted images, videos, and audio to create humor or satire, turn the logic of traditional IP ownership on its head. As memes become an integral part of online communication and cultural commentary, legal frameworks constructed for traditional forms of media cannot cope with their fluid and constantly changing nature. Policymakers, legal analysts, and digital rights advocates are thus investigating possible amendments to copyright laws to provide for these subtleties.
One of the biggest challenges facing copyright law revision is finding a balance between protecting the rights of content creators and preserving the creative freedom that memes inherently enjoy. Memes have a tendency to rely on the theory of transformative use, in which existing works are reinterpreted to convey new meanings or commentary. While transformative use may be eligible for protection under the fair use doctrine in the United States or similar provisions under other jurisdictions, the determination of whether a meme is eligible is firmly within the discretion of courts and subject to context. Courts consider the purpose of use, the nature of the original work, the amount of content used, and the effect on the market for the original work; however, the application of these factors to memes does not always lead to easily determinable results.
Moreover, the international nature of digital content poses enforcement issues because memes can travel across nations that have different copyright laws. Nations vary in the application of copyright exceptions and the extent to which transformative works are protected. This difference makes the development of a consistent method of regulating meme use and crediting difficult. Consequently, current debates center on whether existing international agreements, such as the Berne Convention, should be extended or clarified to offer more consistent direction on digital content and user-generated works.
In order to counter these challenges, several proposals have been made, including the use of more generous “safe harbor” provision for sites hosting user-generated content or the establishment of targeted exceptions for memes that serve a particular social, political, or humorous intent. Another alternative is the strengthening of licensing systems that enable creators to license permissions for transformative use while reserving particular rights. As digital content continues to grow, future copyright law needs to be redesigned to safeguard both the economic rights of creators and the participatory culture enabled by sharing and remixing content.
[1] Stanford University Libraries, What is Fair Use? (2024) https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
[2] T Gillespie, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions that Shape Social Media (Yale University Press 2018) 98.
[3] B Renée, ‘Memes and Copyright: Legal Challenges in the Digital Age’ (2022) 45 Journal of Intellectual Property Law 103 https://www.jipl.org/articles/memes-copyright-legal-challenges
[4] U.S. Copyright Office, Fair Use Index: What is Fair Use?, U.S. COPYRIGHT OFFICE, https://www.copyright.gov/fair-use/ (last visited Mar. 21, 2025)
[5] European Union Intellectual Property Office, Intellectual Property and the Internet, EUIPO, https://euipo.europa.eu/ (last visited Mar. 21, 2025).
[6] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), https://supreme.justia.com/cases/federal/us/510/569/
[7] Mark Katz, Memes and Copyright: A Legal Minefield for Viral Content, 35 J. INTELL. PROP. L. 287 (2021), https://jipl.org/articles/2021-meme-copyright.
[8] U.S. Copyright Office, Copyright and Social Media (2021) https://www.copyright.gov/circs/circ01.pdf
[9] European Parliament and Council, Directive (EU) 2019/790 on Copyright and Related Rights in the Digital Single Market, OJ L 130, 17.5.2019, https://eur-lex.europa.eu/eli/dir/2019/790/oj
[10] David Tan, ‘Meme Copyright: Creativity, Parody, and the Legal Grey Areas’ (2022) 55(3) Harvard Journal of Law & Technology 487, https://jolt.law.harvard.edu/assets/articlePDFs/v55/Meme-Copyright-Tan.pdf
[11] U.S. Copyright Office, Circular 1: Copyright Basics (2021), https://www.copyright.gov/circs/circ01.pdf
[12] Molly Kleinman, The Beauty of the Commons: Creative Commons and Its Impact on the Cultural Landscape (2009), 12 Mich. Telecomm. Tech. L. Rev. 167, https://repository.law.umich.edu/mttlr/vol12/iss2/2
[13] U.S. Copyright Office, The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary (1998), https://www.copyright.gov/legislation/dmca.pdf
[14] Jennifer M. Urban, Notice and Takedown in Everyday Practice, 64 STAN. L. REV. 991 (2012), https://law.stanford.edu/publications/notice-and-takedown-in-everyday-practice/
[15] U.S. Copyright Office, Copyright and the Visual Arts: Fair Use and Other Legal Issues (2021) https://www.copyright.gov/fair-use/ ,accessed 21 March 2025
[16] B Samuelson, ‘Social Media Liability and Copyright Risks: A Case Study of Viral Content’ (2021) 29 Harvard Journal of Law & Technology 243 https://jolt.law.harvard.edu/assets/article/social-media-liability.pdf accessed 21 March 2025.
