It is often asked in creative meetings whether a viral gig, a signature step, or the seed of a meme can be patented before it spreads online. The doubt arises because creative content scales in hours, while formal IP rights feel slow. Indian law draws bright lines between technology and expression, and understanding those lines helps creators choose the right protection quickly and avoid dead-end filings.
First principles, plainly: patents protect technical inventions
Under the Patents Act, an invention is a new product or process with an inventive step and industrial application. Jokes, steps, and meme ideas are not technical solutions, so they do not fit the statutory definition in the first place.
Two exclusions make this even clearer:
Section 3(m): a mere scheme or rule or method of performing a mental act or a method of playing a game is not an invention. A joke format or comedic “rule” sits squarely here.
Section 3(n): presentation of information is not patentable. A punchline, a caption template, or a meme layout is presentation of information, not a technical contribution.
Bottom line on patents: a joke, an individual dance move, or a meme idea cannot be patented in India. If there is genuine technology, for example a novel algorithm that auto-generates meme layouts with measurable technical effects beyond a computer program per se, that is a different conversation, but pure content or an idea for content is outside patent law.
If not patents, what rights protect creative content?
Indian law protects expression, not bare ideas. Two copyright anchors matter.
Idea versus expression: The Supreme Court in R.G. Anand v. Deluxe Films held that copyright guards the expression of an idea, not the idea itself. Similar themes or premises are not enough for infringement without copying of protected expression. This principle sits at the heart of jokes and memes.
Originality standard: In Eastern Book Company v. D.B. Modak, the Supreme Court adopted a “modium of creativity” test. You do not need invention-level novelty, but there must be minimal creative spark. Short phrases or stock expressions usually fail this test.
Jokes and short comedy bits
What can be protected: a scripted routine, a written sketch, or a recorded set is protectable as a literary or dramatic work once fixed. The protection covers your words, timing as scripted, and unique expressive elements, not the underlying comedic idea.
What usually cannot: a bare joke idea, a short slogan-like punchline, or a common premise. These are ideas or short expressions that copyright will not monopolise. R.G. Anand and Modak together explain why.
Practical cue: publish and time-stamp your scripts, sets, and clips. If copying crosses into substantial similarity of expression, you have something enforceable.
Dance moves and choreography
Statute: “Dramatic work” expressly includes choreographic work, but only if the form is fixed in writing or otherwise. A single step is difficult to protect, yet a choreographed routine, once notated or recorded, qualifies.
Performer layer: Live performances enjoy performers’ rights under Sections 38 and 38A, and performers have moral rights under Section 38B. This is separate from the author’s copyright in the choreography itself. For touring dancers, these rights matter in contracts and broadcasts.
Practical cue: fix the routine early, credit the choreographer on recordings, and include performer-rights clauses in show and streaming agreements.
Memes and meme ideas
The idea of a meme is not protectable. But memes use underlying works, for example a photograph or still from a film, which are copyrighted. If you create the base image, you own that copyright. If you use someone else’s, you need a licence or you rely on an exception.
Fair dealing and parody: Indian law lists fair dealing exceptions in Section 52. Courts have treated parody and criticism as fair dealing in appropriate facts, for example Civic Chandran v. Ammini Amma. The Delhi High Court has also recognised de minimis use, for example in India TV v. Yashraj Films, where trivial or fleeting copying does not infringe. These are defences, fact specific, and not a blanket immunity for all memes.
Practical cue: if your meme is transformative commentary that uses brief portions, your risk reduces, but clearance is safest for commercial campaigns.
Can a catchphrase or dance name be a trademark?
Possibly, if it functions as a badge of origin and is distinctive. Indian practice treats slogans cautiously because many are descriptive. Distinctive slogans can register and enforce if they acquire secondary meaning. Recent Delhi High Court commentary reaffirms the high threshold for common slogans to register without evidence of distinctiveness.
Practical cue: if your catchphrase or tour name consistently signifies you, consider trademark filings for key classes, backed by use evidence.
A quick decision tree creators can use
1) Is there a technical invention here
A joke, dance move, meme idea, caption style or format, without engineering, is not patentable.
A genuine technical implementation that delivers a measurable technical effect may be considered, subject to exclusions on computer programs per se. Get a patent professional to vet it before spending.
2) Is there protectable expression
Script or recorded set, yes.
Full choreographed routine fixed in notation or video, yes.
Original image or template you created, yes.
Bare joke idea, a single common step, or a common meme concept, no.
3) Are you using third-party material in a meme
Check if the use is a brief, necessary excerpt for criticism, review, or reporting current events under Section 52, or arguably a parody falling within fair dealing as applied in Civic Chandran. If commercial, secure licences.
Drafting and filing tips, tailored to creators
Fix your work. Copyright arises automatically on fixation. Keep dated project files, choreography notes, rehearsal videos, and export logs. This helps with authorship and substantial similarity analysis later.
Separate choreography copyright from performer rights. Put both in writing. The choreographer owns the choreography unless assigned. Performers control recording and broadcast of their performances, and retain moral rights of attribution and integrity.
Use targeted trademarks. For a truly distinctive catchphrase associated with your persona or show, evaluate trademark filings with proof of use. Expect rejections for common, laudatory, or descriptive slogans unless you can show secondary meaning.
Be realistic about patents. Patent budgets are wasted on content ideas. Save patent discussions for technology that powers creation or distribution, for example capture hardware, compression techniques, recommendation pipelines that show technical effect, or stage tech that solves a concrete engineering problem.
Mind moral rights. Authors have special moral rights under Section 57, and performers have moral rights under Section 38B. Credit lines and edit approvals reduce disputes.
FAQs, answered in flow
Can I patent a new dance technique that improves balance or reduces injury?
If it is a teaching method for humans, it will run into patent exclusions. Consider publishing the technique and protecting the choreography by copyright, and if relevant, securing performer rights for recordings. Patents protect technical inventions, not methods of performing mental or physical acts.Can I protect a joke’s punchline by copyright?
Generally no, because short phrases and ideas are outside protection. Protectable content is the expression of the routine as a whole. The R.G. Anand and Modak standards explain why copying the idea of a joke is not infringement unless the expression is substantially copied.Is every meme that uses a film still illegal?
Not necessarily. Section 52 fair dealing, criticism, review, reporting of current events, and the de minimis doctrine can apply, depending on context and amount used. Parody has found favour in Indian courts in the right facts. Each meme needs its own analysis.Can I stop others from performing my routine live
Yes, if you own the choreography copyright and can show copying of substantial expressive elements, and performers’ rights can also be engaged for recordings and broadcasts. Fix the work and use written licences.The takeaway for creators
Patents are for technology. Jokes, steps, and meme ideas are not patentable subject matter in India.
Copyright protects the fixed expression of your work, not the idea. Scripts, recorded sets, and choreographed routines are your core assets. Fair dealing and de minimis are real, but fact driven.
Performer and moral rights add powerful layers for live and recorded performances. Use them in contracts and crediting.
Trademarks can protect distinctive catchphrases and show names that act as source identifiers. Expect a high bar for common slogans.
Use the right tool for the right creative asset. That is how you protect reach, credit and revenue without fighting the wrong legal battle.
