A meme feels like it belongs to everybody. Legally it doesn’t. Someone took the photograph, someone may have registered the character as a trademark, and the person in the image is a real person with claims of their own.
The question
Indian internet users spend hours daily online, a large share of it on social media — which means encountering internet memes constantly. A meme is a cultural item in the form of an image, video or phrase spread via the internet and often altered in a creative or humorous way.
Some images become extremely popular and are reused endlessly with different catchphrases to express different ideas. Somebody created those images in the first place. So does using one to make a new meme amount to copyright infringement? And what if the creator holds a trademark registration over the image?
Copyright
There are two competing arguments.
First, that the meme’s creator has employed their own skill and labour in making the meme, so it is rightfully their creation.
Second, that the crux of the meme is the image — the essence is conveyed through it — so copyright vests in whoever owns the photograph.
The second is the more legally sound. And a remedy is available to the copyright owner, because registration is not a prerequisite to filing an infringement suit in India. Where people repeatedly use an image to create memes, the copyright owner may well have their day in court.
Could it be fair dealing? One might argue a meme is a parody. But Indian copyright law provides no specific exception for parody. The fair dealing provisions in Section 52 are a defined list — private use, criticism or review, reporting current events — and parody is not among them. Some memes might squeeze into “criticism or review”; most are not doing anything of the kind.
There is a further complication. Even if parody were covered, is a meme genuinely an imitation or trivialisation of the original work? Arguably it is a novel expression that merely retains the theme of the underlying image. An image of an angry person can be turned to countless different ends, none of them commenting on the photograph itself.
Trademarks
Grumpy Cat held registered trademarks across various classes, and applications were filed over Doge as its popularity grew. Assume for the sake of argument that such marks are registered in India.
Using them on goods or services would plainly infringe. But what about use on social media?
Section 29 of the Trade Marks Act provides that a mark may be infringed by spoken use as well as visual representation. On that provision, using or even modifying such images for social media could amount to infringement.
Two limits are worth noting. The provision applies only to registered marks. And the practical question in any case is whether the use is in the course of trade — an individual posting a joke is in a very different position from a business using the same image in a promotion. The commercial use is where the real exposure lies.
Conversely, the creator of a meme cannot readily sue for passing off, since those rights attach to use in relation to goods and services.
What happened to Grumpy Cat. The trademark question stopped being hypothetical: Grumpy Cat Limited sued a beverage company over use beyond the licensed product and won a jury award of around USD 710,000 in 2018 — confirming that meme-derived brands are enforced like any other.
The people in the images
The issues that turned out to matter most were never really IP issues.
Images of real people go viral and cause serious distress to those depicted. Kelly Martin Broderick’s photograph, taken at a university event, was made into unpleasant memes, and she pushed back publicly against the practice. In another instance, the family of a boy with Down syndrome whose photograph was used in memes with derogatory content sued for USD 18 million, with a radio station among the defendants.
Under Indian law these situations engage defamation, privacy — recognised as a fundamental right in K.S. Puttaswamy (2017) — and the personality rights courts have developed to protect a person’s name, image and likeness from unauthorised use. For a person whose face has become a punchline, those are more useful than copyright, which they usually don’t own.
Where this leaves things
Memes carry legal and social issues, and it pays to tread with caution — particularly when a meme is used commercially rather than shared between friends. The gap between what is technically actionable and what is actually pursued remains wide, and courts have not systematically untangled it.
Until they do: think before you share, because on the internet someone is always watching.
The takeaways
- Copyright in the underlying image survives the meme, and registration isn’t needed to sue.
- India has no parody exception — Section 52’s fair dealing list doesn’t cover it.
- Meme characters can be registered marks — and are enforced, as Grumpy Cat showed.
- The strongest claims may not be IP at all — defamation, privacy and personality rights.
Frequently asked questions
Is making a meme copyright infringement in India? Potentially — copyright in the underlying photograph belongs to its owner, and registration is not required to bring an infringement suit.
Is parody a defence under Indian copyright law? Not specifically. Section 52’s fair dealing exceptions are a defined list that does not include parody, though some uses may fall under criticism or review.
Can a meme character be a trademark? Yes — Grumpy Cat held registered trademarks in multiple classes and enforced them successfully.
What can someone do if their photo is used in offensive memes? Claims in defamation, privacy and personality rights are usually more useful than copyright, which the person depicted rarely owns.
Legislation referred to
- The Copyright Act, 1957
- The Trade Marks Act, 1999