Well, Senator Bernie Sanders is making the rounds again. This time it’s in memes galore with his amazing handmade mittens at President Biden’s inauguration. So, what does Bernie Sanders have to do with Brendan Smialowski, and who is Brendan Smialowski anyway? Mr. Smialowski is the photographer who took the now iconic photo of Bernie Sanders at President Biden’s inauguration on January 20, 2021.
The Photo
We, too, thought about creating a meme featuring Bernie, this time with the Pixeladies, to advertise our Photoshop Elements classes. But then we thought about the photo. Who took it? What about copyright? We found we could purchase rights to use the image from Getty Images:
Did all those meme makers posting on the Internet purchase the rights to use Mr. Smialowski’s image? Our guess is no. That got us thinking about copyright as it pertains to memes.
Copyright Law and Memes
Copyright gives the originator of a creative work (and that includes photography) exclusive rights to copy their work. We think copyright is important since we’re artists and don’t want people making money off selling greeting cards and t-shirts with our work on them. We’d like to keep that control, thank you very much. However, U.S. law also allows for this thing called fair use. People are allowed to use copyrighted material under certain conditions, satire and parody being among them. You would think memes would fit perfectly into this category of fair use. Well, it’s not always the case. Click here to read the best explanation we’ve found on the issue of fair use and copyright.
Our Decision
Well, as you can see by our image above, we did make a Bernie meme. Actually we made two: the one above, which we wanted to put in a Facebook ad to advertise our upcoming Photoshop classes, and the one below, which the photographer Kurt Fishback took a couple of years ago to highlight women artists in Northern California. We decided that it was not worth the potential copyright issues to use the one meme as an advertisement. Fair use, however, also allows us to use these images for education, so here you go! Would Getty Images really come after us, if they saw our ad? Maybe. You probably remember that great Obama poster that Shepard Fairey created from an Associated Press photograph. Well, the AP sued. Why? Fairey was making oodles of money off of his image. The two entities eventually settled their suit, but what did we learn from that episode? We probably don’t have to be so concerned with copyright infringement UNLESS we make a lot of money off our manipulated image. After all, sometimes this kind of “copying” is good advertising for the copyright owner.
Creating Our Bernie Meme
The black and white meme was relatively easy to create since we were putting a photograph into a photograph. (By the way, the original photograph of us is in black and white.) However, it takes quite a bit of effort to create a cartoon like the one at the top of the post. Here is the original photo with Bernie added:
A summary of the steps involved:
- Separate Bernie from the background.
- Resize the image to get the correct scale.
- Add a filter or two (and blend them. This can take a while because it’s so much fun to play with filters!)
- Adjust colors. (A lot. Audition different color palettes while you’re at it.)
- Add more outlines.
- Figure out the best size to save the cartoon for your social media.
These steps require you to work with layers and selections. In our Photoshop Elements Essentials classes, we teach you to do all this and much more. Sign up now at https://www.pixeladies.com/classes/. First class starts February 1, 2021.
4 responses to “Bernie Memes, Brendan Smialowski, And Copyright Laws”
Great article! You raise interesting questions that I’m embarrassed to say that I didn’t even think of. I wonder, though, how you could argue that you were making a parody of Bernie…isn’t he a parody per se? If only he owned the image, not the photographer, he could dedicate it to the public (since he’s a socialist, you know).
And, is there a legal difference between Bernie with you two in your studio (great image!) and Bernie added to the Allman Brothers Fillmore East album cover? Maybe …
Great conversation!
Well done!!
High quality!
This is a great analysis of the steps in deciding whether it’s “okay” to use an image for a specific purpose. As the head of Reference in the Prints and Photographs collections at the Library of Congress until 2006, I advised patrons on rights assessments and wrote an overview of copyright and other restrictions that patrons should consider before using images (found at https://www.loc.gov/rr/print/195_copr.html). Much of my work involved helping patrons determine the risks of using an image. And the bottom line so often came down to just what you pointed out; are you going to make money off this image? Then pay the required rights fee to safely use it, or document your efforts to find the copyright owner so you can show you made the effort to find and compensate the right owner. But if you’re not going to make money, the risk is very low. And, as you probably know, the Library of Congress and other government agencies have many images for use where the rights are either in the public domain or have “no known restrictions,” meaning that while it can’t be clearly established that the images are in the public domain, it’s not known that they aren’t. Such as those found on the Lists of Images on Popular Topics at ttps://www.loc.gov/rr/print/list/listguid.htmlh. Thanks for taking the time to write up your own “risk assessment ” for the Bernie meme; I think it’s a helpful model.