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| CC mine, mine, mine |
The source photo for the now world-famous Bernie mittens meme is hardly in the public domain, despite what one sees in social media. The photo was taken by D.C.-based Agence France-Presse photojournalist Brendan Smialowski. As The New York Times reported in January, Smialowski also took one of the well circulated photos (via N.Y. Times) of a cyclist flipping off the Trump motorcade in 2017. He's had a good attitude about his latest claim to fame, the Times tells:
"I genuinely enjoy the fact that people are having a lighthearted moment from a political photo," he said. "Things have been pretty tough for the last year and politics can be pretty nasty, and here are people just having fun."
But AFP licenses its photos through Getty Images, where Bernie Mittens (pop-up) can be yours for from $175 for a 0.2 megapixel small to $499 for a 12.6 megapixel large. Are AFP and Getty as chill about meme culture as Smialowski? As François Larose and Naomi Zener write for Bereskin & Parr, "It’s all Good Fun Until a Copyright Lawyer Gets Involved."
Analyzing the case under Canadian law, Larose and Zener concluded that non-commercial memes are safe from infringement liability, but mittens merch makers had better watch out. I'm lookin' at you, Etsy. I am not so sanguine about U.S. fair use analysis, and I think the hypothetical case spotlights the too often yawning gulf between IP law and the reasonable expectations of real people, especially in the internet age.