The Bernie meme has been a lot of good fun and probably the kind of release valve many of us needed by the time we arrived battered, exhausted, and relieved to watch a peaceful Inauguration Day. My personal favorites are Bernie Merch Table, Bernie Yalta, and Bernie Chicago. And by now, almost everyone knows that Sanders’s campaign team had sweatshirts made with the photo and that 100% of the proceeds from the sale of those shirts—nearly $2 million so far—is being donated to Meals on Wheels and other charities in Vermont.
But viral memes—and separately the sweatshirt story—reprise some common copyright issues and likely misconceptions worth mentioning, beginning with a general reminder that no matter how rapidly or broadly a meme goes viral, this does not transfer the original photo into the public domain. The bemittened Bernie photo was taken by staff press photographer Brendan Smialowski and is owned by Agence France-Presse (AFP). It can be licensed for editorial use via Getty Images, which means it’s rather pricey. But what does that even mean after the image has been reproduced in hundreds (thousands?) of satires in the biggest game of Where’s Waldo ever played?
Memes, Fair Use, & Grandma
Memes are a favorite topic whenever the anti-copyright crowd aims to criticize online enforcement. From technical measures used to identify and flag protected works to the small-claim tribunal that will be established by the CASE Act, the critics either predict the death of the meme as a cultural phenomenon and/or that innocent sharers of memes will wind up inadvertently owing some rightsholder a big pile of money. The familiar hypothetical alleges that your grandmother will share, for instance, Bernie at the Last Supper and end up on the hook for a damage award shortly after the Copyright Claims Board (CCB) is formed under the terms of the CASE Act.
But in addition to the many protections for “grandma” in the CASE Act, most memes—and omnipresent Bernie is a good example—would be protected under the doctrine of fair use. To review, the fair use analysis weighs four factors. Factor 1 considers the purpose of the use, including whether that purpose is commercial; Factor 2 considers the nature of the original work, namely whether it is more factual or expressive; Factor 3 considers the amount of the original work used to achieve the purpose; and Factor 4 considers whether the use may cause potential harm to the market for the original work.
These factors are weighed interdependently, and here’s what the Bernie memes look like as a rough analysis: Under Factor 1, the memes generally add new expression to the original and are not made for commercial purposes; under Factor 2, the original photo is slightly more informative than it is expressive;* under Factor 3, the heart of the work is used in every meme, but the amount used is arguably necessary to the purposes under Factor 1; and under Factor 4, no single meme is likely to cause harm to the market for the original work. But put a pin in that last point because it prompts a slightly different conversation.
Meme makers are everywhere, and those of us who share their lampoons number in the millions. But aside from the practical reality that memes cannot be stopped, it also happens to be true that, very often, there would be no legal basis for stopping them. But having said that, there were quite a few commercial enterprises that jumped into the fray with their own Bernie variations, promoting everything from local stores to major brands. And that’s where things can get a little trickier, both from the perspectives of the copyright owners and the subjects in the photographs.
Using a work for a commercial purpose tilts away from fair use under Factor 1; and in these examples, Factor 4, potential harm to the market for the original, would likely be the deciding consideration if, say AFP were to sue a business for turning their Bernie image into an advertisement. But even this consideration may be influenced by the fact that AFP does not have the independent right to license the photo for commercial use either.
As with nearly all photographs of famous people, AFP only offers a license for editorial use. Photojournalists do not obtain commercial releases, and no subject in his right mind would sign such a thing on the spot. Although confusion on this matter persists, the simple rule to remember is that the photographer (or his employer) owns the copyright in the image, but the subject(s) own their right of publicity (ROP). So, in this example, Bernie may not mind if the local bookshop memes him sitting in front of their store, but he might feel quite different if his likeness were used to promote, say, a Wall Street firm.
The point is that with regard to both copyrights and rights of publicity—and ROP vary state to state—commercial users both large and small should at least think about what they’re doing before leaping into a meme mosh pit. Just because everyone is doing it does not mean the rules are the same for commercial users as non-commercial ones. And without careful consideration, the commercial user could easily find itself on the wrong side of a litigation under copyright or ROP law, or both.
The Sweatshirt is a Commercial Use
Prospective users of photos, etc. should also remember that commercial use is not about profit per se. Raising money for charity is still commercial use under the law. I sent an email to Friends of Bernie asking whether they had contacted AFP regarding the sweatshirt, and I was not very surprised that they did not respond (**see note below). But regardless of this unusual circumstance involving a popular progressive senator, a sudden meme frenzy, and raising money for charities, nobody following this story should be confused about the fact that you do not automatically own the right to reproduce an image of yourself. In general, if you want to make shirts or coffee mugs or keychains—even to raise money exclusively for a worthy cause—you need permission from the copyright owner.
At the time of first publication, I did not know whether Bernie’s people obtained permission, but I am confident that the this story will confuse many potential users of photos into thinking that Team Bernie did not have to consider doing so. To put this in perspective, as a matter of copyright law, Bernie’s reproduction of the photo onto sweatshirts is no different from the McCloskeys’ reproduction of their infamous gun-wielding photo onto Christmas cards. And in that case, the photographer did take legal action. So, prospective users of works should remember that the legal standard is not one thing because we applaud Bernie’s use and another because we revile the McCloskeys’ use—or vice versa for some.
The Market Value of Photographs
I mentioned above that most memes under Factor 4 of the fair use test will be considered non-harmful to the market for the underlying work; but this is a tough subject that provokes lot of sympathy for professional photographers. A single meme, analyzed on its own, would likely be considered non-harmful, depending on certain aspects of the original photo and how it was used in the meme. But it cannot be ignored that the cumulative effect of a meme gone viral—or even widespread sharing of an unaltered image—can obliterate the market value of an original photograph—and licensing photos is how photographers pay their bills.
In this instance, Smialowski commented to Rolling Stone, “The picture itself is not that nice. It’s not a great composition. I’m not going to be putting this in a portfolio.” But the broader point is that meme frenzies make no distinction about the relative market value of the image being used. On that topic, photographers and all authors of works are acutely aware that the insidious commercial users in these viral phenomena are the social platforms themselves. While it is true that the meme-maker who put Bernie on Forrest Gump’s bench had no commercial interest, and neither did anyone who shared the image with friends, the data produced by all the sharing is worth a fortune to Facebook, Google, Twitter, et al.
Resolving that issue remains a challenge for professional journalists and millions of authors of creative works in the digital age. And in that effort, I hope that Senator Sanders himself, as an avowed champion of labor, takes note that creative professionals comprise a substantial segment of the American middle class and that copyrights are the equivalent of their labor rights.
*As stated in the Rolling Stone quote, even the photographer would likely say that the photo is not highly expressive with respect to his authorship.
**NOTE: Thanks to comments on Twitter, according to ABC and other news sources, Getty Images was contacted and agreed to donate licensing fees to the causes. Bernie Sanders’ mittens, memes help raise $1.8M for charity – ABC News (go.com)
© 2021, David Newhoff. All rights reserved.