Meme Culture – An examination of threshold Of Copyright Protection in the Digital Age

Meme Culture

Media, a tool to store or deliver information, is one of the most powerful institutions today. It mainly refers to the mass media communications industry, such as print media, publishing, news media, photography, etc. While it has always been vital to society, the emergence of the digital era has further catalyzed the importance of media. This has both benefits and disadvantages: While access to knowledge and the scope for free expression have increased, the burgeoning field has also become unregulated. One salient issue with respect to his is the ownership of materials that have been digitally created, a gap that has not yet been filled by law.

Meme Culture in India

Everybody who scrolls through the internet enjoys reading memes. The meme culture in India has grown swiftly, and now even the perceptions of people are influenced by memes and are a visual tool in the digital era. Creating a meme isn’t easy; it requires a lot of imagination and a humorous mind to come up with something that everyone finds amusing and important. The term ‘Meme’ was coined by the biologist Richard Dawkins in his book “The Selfish-Gene” (1976) to describe a gene-like infectious unit of culture that spreads from person to person by copying or imitation. A meme was described as anything that can spread around the internet involving different kinds of content; it belongs to no specific genre.   

Memes should be viewed through the perspective of communication. As mentioned earlier, the term was coined by a biologist and has since been extensively adopted (and contested) across a variety of fields, including psychology, philosophy, anthropology, folklore, and linguistics. In the realm of communication, it was, for the most part, completely neglected. Until the twenty-first century, researchers in mass communication were not in support of memes. They were deemed inadequate for investigating content that is delivered concurrently from a single institutional source to the people because they proliferate slowly through interpersonal contact. However, in an era when the lines between interpersonal and mass communication are dissolving, this is no longer the case. Memes have become more significant than ever to communication scholarship in an era characterized by a convergence of media platforms in which content travels quickly from one medium to another.

Memes as Transformative Work

A meme is something that can be transmitted and does so successfully. One of the most important objectives of memes is that they can be used to transmit ideas and concepts through a variety of ideas. Memes are, by definition, inspired by other, varied sources. Every meme acquires fame through changing the situational setting of another’s original piece of work, be it a movie still or a photograph. When can work be said to be transformative?

It is to be understood that work is said to be transformative when the new work has been transformed from the original work by adding new expression or meaning and has added value to the original work by creating new information, aesthetics, etc. When a whole new meaning comes up through the addition of unique concepts, it will be considered as a transformative work. Every meme is a transformative work that is inspired by a pre-existing work. A transformative work or derivative work in simple and plain meaning refers to that which comes out through the inspiration received from another creation.

Should memes come under Copyright law? Depending on the answer, one can judge whether memes come under the ambit of the fair use doctrine and are thus excluded from liability under copyright infringement. The ultimate aim of the fair use doctrine is to allow freedom of speech and expression. Through this it allows the creator of the meme to use the work created without actually getting a license to use that particular work. What does the fair use doctrine do? It protects the transformative work from being liable for copyright infringement.

However, as iterated before, the transformative work should be to such an extent that it changes the expression as well as the value of the original work. Memes should also be exempted under the fair use doctrine. However, the fair use doctrine only provides an exemption from being liable for copyright infringement. It does not reward or financially provide for the creative work put in by the meme maker.

Copyright Law and Derivative Works

Digital Copyright

The actual objective of copyright law has always been a source of constant debate. The first copyright legislation in the world, the Statute of Anne was enacted in 1709. Other than the encouragement of learning, promotion, and regulation of creativity has also remained as one of the principal objectives of copyright law. Copyright protects the creative expression of cultural works in the form of literary, dramatic, musical, and artistic work. However, copyright law faces continuous friction with two opposing purposes, i.e., promotion of creativity by incentivizing authors, and grant of maximum access to users.

Often, users are themselves authors, which gives rise to a more complex tussle between first and second authors. This friction is most prominently evident in the right to make derivative works. A derivative work is based on a pre-existing work. The term “derivative work” is used in the United States Copyright Act of 1976 and is defined as a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture works grants the owner of an original work the exclusive right to make works based on the original and thus the right to prevent others from making the derivative works. Therefore, the right to make derivative works provides a good spectrum through which the relationship between law and creativity can be examined.

There are two major issues surrounding the present understanding of derivative work rights. First, it is interpreted too narrowly since it is overshadowed by reproduction rights. Secondly, it offers the first author full control over derivative second works, which gives the first author an iron grip. Derivative works right are an important aspect of the creative process and the creative world as a whole.

In order to appreciate this, the significance of the popular saying “standing on the shoulders of giants” must be understood. It refers to the notion that no work of authorship is created from nothing. A creator has to depend on prior or existing knowledge and creations to create original work. Using pre-existing knowledge relevant to the creative domain is a central and crucial component of the creative process. Authors take the help of pre-existing expressions as tools to enable their own creativity. Consequently, audience members utilize them as meaning-making tools, to help understand and attribute value to creative works. In this way, pre-existing expression thus plays an essential part in all creative fields, including cultural creativity. This becomes more pertinent with technological innovations, which enable the development of new creative patterns and new types of culture.

Threshold of Originality as a hindrance to the creation of derivative work

The field of intellectual property law is rapidly changing. It has expanded rapidly, as human beings continue to create and seek credit for said creations. It has already been established that the requirement of originality is inseparable from copyright law. However, it is to be determined as to what extent the originality prerequisite must restrict the ambit of acquiring copyright.

The most commonly used method to define what is protected under copyright law and what is not is property-oriented reasoning. It uses the ambit of property and entitlement to create a link between the author and the work. This reasoning has been imbibed from the Lockean labor acquisition approach. The Lockean approach essentially suggests that one should enjoy only the fruit of one’s own labor. It is considered to be the natural right of the author/owner to benefit from his/her own labor for the appropriation of certain property.

Based on a similar line of reasoning, copyright protection grants the right to the author by allowing him to restrict people from using and taking credit for his creations. However, unlike the case of tangible property, the intangible property cannot have unlimited restrictions. In the case of tangible property, it is essential to establish a relationship between the work, the public, and the author. The owner’s right over the property is restricting the public’s use or access to the property.

Keeping in mind the doctrine of public interest, the restriction over creations, that is, the intangible property cannot be to such extent that it curbs creativity. The right to restrict by an author should be to such an extent that he gets a significant financial return for his work. However, it should not curb the creative ideas of others, just due to the fact that some components of the idea have already been expressed by a certain author.

The case of Bishop v. Stevens clearly states that the purpose of copyright legislation is “to protect and reward the intellectual effort of the author”. The intellectual effort by a person can be considered to be the originality or creativity put in by a person to create subject matter that is unique and innovative. Further, in the case of the University of London v. University Tutorial Press, it was stated that the concept of originality means the expression of innovative or original thought. He suggested that copyright legislation need not involve themselves in the originality of ideas and should restrict themselves to the originality in the expression of thought.

Now it is established that originality is based on the contribution of one’s work to an idea, the question arises as to whether the amount of effort put into the work matters. The question arises as to the quantification of work put into changing the expression of an idea of one person from that of the other. Under such criterion, memes clearly qualify, though this has not been reflected in legal provisions. 


Memes are transformative works, and as a result, the authors should receive due credits for the changes made. This exists simultaneously with the legality of memes under the doctrine of fair use since the authors of memes introduce new elements that they should be credited for. This is fully consistent with the framework of copyright law, but no steps for the same have been taken, which creates an unfortunate legal anomaly that should be rectified at the earliest.

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