Reels, Memes, and Legal Risk: Copyright in Social Media Marketing

Introduction

The unregulated exponential rise of social media platforms has transformed the  marketing and content dissemination landscape, which is now increasingly evident in the adaptive patterns of users and the content management practices of these platforms. Instagram, Tik -Tok, Twitter and Facebook are some of the social media platforms who are big players having predominance in this sphere of society’s milieu, where the content gets spread in seconds and has the potential to drive mass engagement, as similar to an Instagram trend or a viral meme which can catapult a brand into cultural relevance overnight. The most virulent corner of the boundaries between fair use and copyright infringement is perilously blurry. Short-form content has become a widespread mode of communication between creators and their audiences. However, the rise of content creation on digital platforms has led to an increase in complex legal issues, such as copyright infringement.

Social media platforms also provide the room for parody and satire. Social media platforms have various loopholes when it comes to protecting the content stored on their platforms. The centralissue is copyright infringement of the content, which provides a reason for Indian copyright laws to intervene and ensure the fair use of content by providing various rights protection measures to the affected party and ensuring the restrictions under the provisions are followed.

This Article highlights the growing complexities of the legal framework of copyright law with the rise of social media. It explores the legal challenges faced by brands and creators engaging in meme marketing and content creation.This Article delves into global frameworks and how they influence the Indian copyright law. It serves as a guide for navigating the blurred boundaries between creativity and copyright infringement in the digital era.

What is Copyright? A Brief Legal Overview

“Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.” ^[1]Copyright particularly does not provide a safe harbor to the ideas behind the work, but rather provides a protective shell to the essence and expressions of those ideas, which are devised and used solely by the creator (or originator of the content); it is of no concern whether the content is tangible or intangible. The Copyright Act 1957 governs the subject of copyright law in India,”copyright” means the exclusive right subject to the provisions of this act.The legislation has been amended several times and is aligned with many international conventions and treaties, like the Berne Convention and the WIPO Internet Treaties. There is no explicit provision in the Copyright Act that specifically addresses social media platforms; however, provisions for general copyright infringement are used by the judiciary to deal with cases related to social media.

The Digital Millennium Copyright Act (DMCA), originating in the United States, has influenced many countries to adopt a provision similar to it. Creators can file a DMCA notice if they find infringing content posted by someone on social media. Then the officials will send a takedown notice to remove the infringing content from the digital platform.

Section 52(1)(c) of the Indian Copyright Act 1957 is somewhat similar to the Digital Millennium Copyright Act (DMCA) notice and takedown procedure, where the rightful owner or the creator can request a takedown or send a notice to someone who has copied their work. ^[2]

Social media platforms like Instagram have made it easy to copy content posted there, which can be unfair to the original creator. Provisions like the DMCA protect the original work of creators and ensure that if there is copyright infringement in content, it should be taken down within a specified timeframe. Hence, to maintain and protect the rights of the creators over their work, we have various vigorous laws and statutes that have kept evolving from their date of advent in an effort to deliver the best to the interest of those who seek recourse from them.

From Clicks to Courtrooms: Legal Trouble in Meme Marketing

Lawrence Lessig once quoted that “Americans have been selling this view around the world: that progress comes from perfect protection of intellectual property. Notwithstanding with the fact that  the most innovative and progressive space we've seen the Internet  has been the place where intellectual property has been least respected”.^[3]

Memes, which were just a source of laughter and entertainment in the past, have become a booming industry worth INR 3,000 crore.^[4] Meme Marketing is when brands recreate viral memes to expand their reach on social media platforms and brands engage there to stay relevant to the young generation. Brands hop on meme trends to become viral, but great reach often comes with great risk. Food delivery platforms like Zomato and Swiggy engage in meme- based marketing on social media.. These tactics, while being entertaining, can carry multiple legal risks in the commercial context.

The Grumpy Cat Case was one of the first major meme-related IP lawsuits to go to trial and win. In 2013 Grumpy Cat Ltd and Grenade Beverage LLC entered into a licensing contract where Grumpy Cat Limited allowed Grenade Beverage LLC to use the grumpy cat image and market a grumpy cat iced coffee named “Grumpuccino” It was a Limited license which covered only the iced coffee but Grenade Beverage exceeded the terms of license and created more products like coffee beans and t -shirts, none of which was part of the agreement. Grumpy Cat Limited sued Grenade Beverage in 2015, and the jury ruled in favor of Grumpy Cat Limited, and it was awarded $710,001 for damages for copyright, trademark infringement, and breach of contract. ^[5]

[Image Sources: Shutterstock]

“A recent Digital 2021 April Global Statshot Report reveals that global internet adoption has just passed the 60 percent mark, meaning that 6 in every 10 people alive on Earth today now use the internet.” ^[6] “There are 4.33 billion social media users around the world today, equating to more than 55 percent of the world’s total population.” Social Media Platforms like Instagram, TikTok, and YouTube make it very convenient to share and access content instantly; thisconvenience comes with a surge in copyright violations, many of which go unnoticed because of speed and scale. Many Creators are open to their work being recreated on social media as it increases their popularity and their work gets recognition. However, people take advantage of this openness and often re-post content without giving credit to the original creator, which often leads to monetary gains for the latter, which is not just unfair, but also disrespect to the efforts of the original creator.

Fair Use Doctrine: A Legal Shield or a Grey Area?

Fair Use is a legal principle that allows the reproduction or use of copyrighted material without permission under certain conditions. Most common categories protected under fair use are criticism, commentary, satire, parody, news reporting, and teaching.^[7] 

Whereas Fair dealing is a law that is prevalent outside of the U.S, including the U.K., India, Singapore, Australia, and others, they are comparatively stricter and offer fewer allowances than their U.S counterpart.^[8] Copyright protects the reflection of ideas, not the ideas themselves. 

The grey areas of fair use arise in situations where there's no clear distinction between whether the work falls under fair use or constitutes copyright infringement. The grey area exists because of subjective interpretations by judges, rapid technological advancements like the meme culture, remix culture, and differing legal precedents across jurisdictions. 

The four-factor test is often used in the U.S.A. to determine whether use is fair or requires permission. First Factor deals with Characters of use, which are uses that serve transformative purposes, such as criticism, commentary, and parody, that work in favor of fair use. In contrast, commercial uses favor copyright owners, and content creators must obtain permission from them before using their work for commercial purposes. Second Factor deals with the Nature of work; factual and published works favor fair use, whereas imaginative, creative, fictional, and unpublished works are against fair use. Third Factor deals with the Amount of work being used; a small portion of work favors fair use, whereas a large portion, like the heart of the work, is against fair use. Fourth Factor deals with Effect on the Market, it is favorable to fair use if the proposed work is transformative or there is no harm to the market and licensing, whereas it's not favorable to fair use if the work competes with the original or substitutes it and is not transformative. Fair use is a common defense against copyright infringement, but it cannot be used as blanket protection. 

Strategic Compliance: How Brands and Creators Can Avoid Legal Pitfalls 

Brands and creators must build a sustainable digital presence, rather than just hopping on the latest trends. They must include Intellectual property compliance along with content creation. Both should create original content whenever possible or utilize copyright-free resources.  If they're using a popular meme reference, they must appropriately credit the original creator or obtain permission from them before sharing their content.

They should use royalty-free or licensed content whenever creating content that incorporates music, videos, and artwork. ^[9]Brands should have a trained social media marketing team that is aware of the social media platform's policies. If a brand wants to transform or recreate content, it should ensure that it potentially qualifies under fair dealing. Content creators should regularly monitor takedown notices or complaints on intellectual property because platforms like YouTube only have a three-strike rule, and after the third, the channel is terminated. Many Creators lose their well-built monetized channels due to copyright violations. As Picasso once said, every artist steals. It is okay to draw inspiration from other content creators, but it's equally important to credit them.

Conclusion 

This article has explored how trending reels and viral memes can lead to serious IP violations, cause legal troubles, and even reputational damage to well-established brands and content creators. Understanding the compliance procedure and legal frameworks like fair dealing, originality, and licensing is very important for creators to protect their creative expression.  Content creators must invest in legal literacy to ensure that innovation is accompanied by compliance. It is upon these creators to decide whether they want to follow the regulations or just risk it all. Creators must be proactively looking at IP compliance or takedown notices. Digital Creativity only thrives in conscious compliance. In the Digital Era, every post can be a potential lawsuit, and to avoid the pitfalls of infringement, creators must be aware of the legal aspects of social media marketing. 

Author: - Geetali Mudgil, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

^[1] ‘Copyright’ (copyright) <https://www.wipo.int/en/web/copyright> accessed 17 June 2025

^[2]Section 52(1) in the Copyright Act, 1957’ (Indian kanoon )<https://indiankanoon.org/doc/257434/> accessed 9 June 2025 

^[3] ‘Lawrence Lessig Quotes - Brainyquote’ (Lawrence Lessig quotes )<https://www.brainyquote.com/authors/lawrence-lessig-quotes> accessed 9 June 2025 

^[4] Reelstars T, ‘Meme Pages in Trouble: How India’s Meme Creators Face Legal Risks in an INR 3,000 Crore Industry’ (The Reelstars, 22 May 2025) <https://www.thereelstars.com/entertainment/meme-pages-in-trouble-how-indias-meme-creators-face-legal-risks-in-an-inr-3000-crore-industry/> accessed 9 June 2025

^[5] ‘Grumpy Cat Wins $710,000 Payout in Copyright Lawsuit’ (BBC News, 24 January 2018) <https://www.bbc.com/news/world-us-canada-42808521> accessed 9 June 2025 

^[6]Digital 2021 April Statshot Report - Datareportal – Global Digital Insights’ (DataReportal, 22 October 2021) <https://datareportal.com/reports/digital-2021-april-global-statshot> accessed 9 June 2025 

^[7]Schaefer A, ‘What You Need to Know about Social Media Copyright’ (Sprout Social, 7 August 2023) <https://sproutsocial.com/insights/social-media-copyright/> accessed 9 June 2025 

^[8]Schaefer A, ‘What You Need to Know about Social Media Copyright’ (Sprout Social, 7 August 2023) <https://sproutsocial.com/insights/social-media-copyright/> accessed 9 June 2025 

^[9] Sara, ‘Social Media and Copyright: How to Avoid Serious Issues’ (Little Media Agency, 26 July 2024) <https://littlemediaagency.com/social-media-and-copyright-how-to-avoid-serious-issues/> accessed 9 June 2025