[Copyright] The Bernie Sanders Chair Meme and Copyright

It’s meme time. Let’s get Berned.

The Bernie Sanders chair memes have been the best of 2021 so far. They are based on a photo of Senator Sanders sitting socially distanced in public and being his modest with a pair of brown mittens that the Internet is going crazy about.

You can read the background story on the Rolling Stone, The Photographer Behind the Bernie Sanders Chair Meme Tells All. Some good memes are featured by CNBC here.

The Internet is truly amazing –

*below uses are for educational purposes only

After hours of laughing, I decided to be a nerd and analyze the rights associated in the Bernie Sanders chair memes. In short, a meme is usually a derivative work that involves copyright and, on occasions, persons’ right to privacy.

不啰嗦，只写干货。

It all began with an original photo taken by photographer Brendan Smialowski (in other cases, a meme could start with an original image made by a creator / illustrator). The original Bernie Sanders chair photo was credited as Brendan Smialowski/AFP/Getty Images. It looks like Smialowski is a correspondent works for AFP, the major French news agency. Most likely, the original photo is a work made for hire under the definition of copyright law and AFP is the copyright owner to the original image. Getty Images, on the other hand, is the licensing agent for the original photo.

In this case, Sen. Sanders will not be able to claim the right to privacy (including the right to his name and likeness) in these memes because he is a public official and the photo was taken in public. Usually, anyone could fairly use an image of a person if the photo of the person is taken in a space where a reasonable person would not expect privacy, or if the photo is newsworthy and concerning a public official or public figure. AFP, the copyright owner, is therefore allowed to use Sen. Sanders’ image in the news articles without an invasion to Sen. Sanders’ privacy.

During the 2021 inauguration, people started to create brilliant memes using this AFP image. These memes hardly infringe AFP’s copyright because of the doctrine of fair use in copyright law. In short, a meme is a “parody” where the creator is permitted to fairly use others’ material to make fun of, as long as the use is fair and necessary.

How about the rights by meme creators? If you make a Bernie Sanders meme today, do you own it? The answer is - you may own part of it if you use some of your original elements. However, the original copyright owner is entitled to all of the derivative works, which would technically include the meme that you create, as long as the meme features predominately the original content, i.e., Sen. Sanders and his mittens.

It’s worth mentioning that you may actually infringe others’ copyright when creating memes. Once, there was a famous “Socially Awkward Penguin” meme that went viral. Not known to many meme creators, the penguin image is copyrighted and is owned by National Geographic, who launched copyright enforcement proceedings against “infringers”. Unlike the Bernie Sanders chair meme, the use of a copyrighted penguin there was not parody, because, in my opinion, it didn’t have to be this penguin, so the use was unnecessary and unfair. Watch out what images you are using :).

Lastly, here’s my favorite Bernie Sanders chair meme –

Sincerely yours,

Silvia Sun, Esq.

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