Copyright and the Bernie Meme

If you’ve been anywhere near social media this past week, you’ve undoubtedly seen the Bernie chair meme. It’s been difficult, if not impossible, to escape it.

The idea of the meme is straightforward. While he was attending President Biden’s inauguration, a photographer snapped a photo of Senator Sanders where he appears to be grumpy while wearing a winter coat and mittens.

Since the minute the photo hit the internet, users have been taking the the now-famous image and placing Senator Sanders in places he doesn’t belong.

To simplify the process, a series of meme generators have been released including one that lets you use your own background image, one that used the Google Maps API to place him anywhere in the world and many others. (Note: Both of those links are non-functioning at this time.)

Senator Sanders himself took advantage of the meme’s viral nature, selling merchandise featuring the meme in his campaign store and giving the profits to Meals on Wheels Vermont.

Even I got in on it, making a version of the meme that (crudely) paired it with one of my favorite movies, Repo! The Genetic Opera.

But, as the meme seems to finally be dying down some, a strange question emerges. Who owns the copyright to this? What would happen if they decided to sue?

The answers, surprisingly, are fairly straightforward.

Who Owns the Bernie Chair Image?

The now-famous photo of Senator Sanders was taken by photographer Brendan Smialowski, who was covering the inauguration as part of his work with the Agence France-Presse (AFP) wire service.

As a result, the AFP owns and is responsible for licensing the image. If you’re interested in licensing this photo, you are free to do so via Getty Images. You can also use their embed code if the use is non-commercial.

Interestingly, Smialowski said in an interview with Rolling Stone that he almost didn’t send that image, feeling it had poor composition and not worthy of his portfolio. However, neither he nor the AFP had any way to predict how popular the image would become.

Nonetheless, both the AFP and Smialowski have both been pretty content to let the meme play out. There have been no reports of either taking any copyright action against creators of Bernie meme. Though some of the memes have been targeted, it’s been over the background images, not the photo featuring Senator Sanders.

But what if they did decide to sue or seek licenses for the use of the image? If they did, they would have an uphill battle both practically and legally.

Fighting an Impossible Battle

To repeat, there’s no indication that either the AFP, Getty Images or Smialowski intend to take any broad action against those who create these memes, especially those that do it for non-commercial purposes.

But, if they did, there would be some serious challenges.

The biggest challenge is pure practicality. With so many of these memes being made and being shared so widely, there’s literally no way they could target or address even a large percentage of them.

The AFP and Getty have limited resources for fighting piracy and it simply doesn’t make sense to target a viral meme like this one, especially since the average social media user is not a target customer for anyone involved.

But if they tossed practicality and common sense aside and did it anyway, then they run into the issue of fair use. Though every use of the meme is different, there’s little doubt that majority Bernie memes are highly transformative.

As such, the vast majority of meme-makers would have a strong fair use argument. Though fair use rulings are inherently unpredictable, the potential defendants have a very strong case.

That said, there is one area where caution is warranted and that is when the meme crosses from being a non-commercial viral sensation to become a source of revenue.

The Commercial Use Problem

Though the majority of people who made their own Bernie memes were doing so simply for laughs and jokes, every time such a viral sensation takes hold there will always be some who attempt to capitalize upon it for commercial use.

Whether it’s using Bernie memes in advertisements, selling merchandise featuring the image or even creating commercial sites to help people make the meme.

Here things become much more complicated. Since they are fewer in number and seen as much more harmful to the business Getty and the AFP are in, targeting them becomes much more practical and more likely.

Though they may still have a strong fair use case, depending on the specific use, commercial use is treated more suspiciously in fair use decisions than non-commercial ones. In short, though a fair use argument is far from impossible, it is hindered.

And there is history here. In 2009 the Associated Press (AP) targeted artist Shepard Fairey over the famous Obama “Hope” Poster, which was based on a photograph by AP photographer Mannie Garcia.

Though Fairey was the first to sue, in hopes of winning a declaratory judgment in his favor, he was eventually forced to settle on terms favorable to the AP. However, much of this was because of the revelation that Fairey had provided false evidence, severely hampering his case.

Ten years later, in 2019, Barstool Sports and Jerry Media both faced backlash for their commercial use of memes and gifs. This was in response to news that many such sites were being paid thousands of dollars per sponsored post, turning freely shared memes into big business.

Does this mean that those using Bernie memes to promote their business are likely to face a backlash from the AFP or Getty? Probably not. Both practical and legal issues remain but, if there is going to be a copyright fight over the Bernie meme, this is where it will be.

Bottom Line

I know that I am posting this as the meme is dying down, or already dead according to some. However, that’s the nature of the internet, to get caught up in memes and fads only to think about the potential consequences later.

Fortunately, this was a situation where the potential consequences are relatively insignificant. However, as someone who watched the world get swept up in Napster only to think about the copyright issues AFTER the company was sued, it’s something I always think about.

Still, this is one time that copyright really doesn’t throw cold water on the party. The fair use defenses are too great and the practicality of even filing takedown notices is limiting. Outside of directly commercial uses, where there is still some risk, there’s little reason to not enjoy your Bernie memes.

That is, until the next meme fad comes along…

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