The Oscar Selfie: Why Copyright Analysis Should Be Left To Copyright Lawyers

oscar_selfie_twitterGood grief.  There are thousands of interesting copyright issues, and trust me, “who owns the copyright in the Oscar selfie?” is not one of them.  I mean, who really cares?  Is it going to matter, ever?  But there has been so much awful “analysis” by non-copyright lawyers holding themselves out as copyright experts that I cannot help myself.  BTW, Mr. or Ms. “entertainment lawyer,” you are not a copyright lawyer.  In fact, I am not even sure you are a lawyer.

In any event, here is the deal:  It is quite possible that nobody owns a copyright in this photo because nobody contributed sufficient original photographic authorship.  Contrary to what you may have read elsewhere, the fact that Ellen had the brilliant idea to take the photo does not make her an author.  Ideas are not copyrightable.  The arrangement, position, lighting, etc. (elements that often comprise authorship in a protected photograph), from everything I have read, appear to have been spontaneous and undirected.  This is typically the case with a selfie.  If anyone could possibly own a copyright in this photograph it would be the person who selected the framing and angle of the photo and actually took the shot, which I understand was Bradley Cooper.  Looking at the photograph above, however, it seems like a stretch (assuming as I do that nobody made creative decisions as to where to place each celebrity, how to light the scene, etc.) that Bradley contributed sufficient original and creative authorship merely by making sure as many celebrities as possible were in the frame and quickly hitting the snapshot button to engender copyright protection.

Of course I recognize that even a minimal spark of creative authorship is sufficient to engender copyright ownership, and I am not saying that on a given day a particular court might not find that there is a copyright.  But if that were to happen, the only possible owner of the copyright would be Bradley Cooper.  It is not a thorny question.   Perhaps the most silly “analysis” I have seen so far has been the suggestion that because Ellen had the idea to take the photo and asked Bradley to take the picture, she owns the copyright as a work for hire.  Anyone with even a passing familiarity with the actual copyright law would know this is a non-starter.  Given that Bradley Cooper is not an employee of Ellen acting within the scope of his employment, the only way that the photograph could be owned by Ellen as a work made for hire would be if (1) the photograph were one of the expressly enumerated types of works listed in Section 101’s definition of a work made for hire and (2) Bradley were specially commissioned pursuant to a written agreement signed by both Ellen and him, expressly specifying that the photograph would be a work for hire.  Any work for hire claim with respect to the Oscar selfie would fail on both counts.  First, photographs are not among the types of works that can possibly be a work for hire when created by a non-employee (unless they are commissioned as contributions to collective works, which is not the case here).  Second, as far as I have read, there was no written work for hire agreement.  Contrary to some of the “analysis” floating around out there, there is no “industry custom” or “he’s an actor” exception to these statutory requirements.

Nor does a celebrity have any copyright ownership in their physical appearance as embodied in a photograph (although they may well have a right of publicity, but that is another matter entirely), so there is no way that any of the subjects in the photograph would have any claim to copyright.  I should note, however, that this photograph was taken within the jurisdiction of the Ninth Circuit.  Given the bizarre recent Garcia decision, which recognized an actor’s independent copyright interest in their performance embodied in a motion picture, perhaps all bets are off.  (Please note that my tongue is held firmly in cheek on this one, even if correct the Garcia decision could not reasonably be extended to recognizing an actor’s copyright in their physical experience embodied in a photograph).

Comments

  1. Pamela Chestek says:

    Thank you! Finally someone who writes sensibly about it.

  2. Pamela Chestek says:

    I think the “work made for hire” argument is really meant to be a “scribe” argument. That one I might buy, with the Academy as the owner of a copyright (assuming there is one). Staged bit put together as part of the production, so the owner would be whoever staged it, perhaps the director, or the Academy as the hiring party assuming the right documentation was in place.

    • Interesting thought, Pamela, but I am not sure that works in this situation. First, I would note that the analysis I have read and was responding to was pretty specific about arguing work for hire, which is not the same thing as a “scribe” argument. In this case, the allegedly copyrighted work is a photograph. The authorship in a photograph is not the “event” it may depict, but rather the angle, composition, lighting, etc., embodied in the photography. I do not see how the Academy could be argued to have made those creative decisions and instructed Bradley Cooper to shoot the photograph in a certain way. It seems to me that if any creative choices were made with respect to such authorship, the only one who would have made them was Bradley Cooper. If he exercised any material independent creative judgment, the scribe argument would not work.

  3. Ellen planned and rehearsed the selfie shot. There is video of the rehearsal on a third-party site, and it think this site’s comment tech won’t allow me to include the link. It’s an abcnews stie

    • Hi Mike, thanks for posting the comment. The video shows her planning the concept for the selfie, but does not show her actually rehearsing the shot itself. There is no indication, at least in the behind the scenes video at ABC, that she dictated who would stand where, the poses they would take, etc., and video of the taking of the shot itself shows that she did not have any control over the framing of the shot, lighting, etc. These elements, if sufficiently original and creative, are the copyrightable elements of a photograph. As I noted in the post, concepts and ideas are not copyrightable authorship.

  4. Emma Williams says:

    Interesting (and informative) post, thank you.

  5. Eriq Gardner says:

    At the risk of annoying with more talk about the uninteresting-but-well-commented-upon issue of the Oscar selfie, I have a few points:

    1. OK, I get your point that there might not be suf­fi­cient orig­i­nality, but let’s get past that for a moment.

    2. If the person that selected the fram­ing and angle of the photo and actu­ally took the shot owns the copyright, does that mean that if I give my camera to a stranger to take a photo of me, that the stranger holds copyright in the photograph on my camera? That seems odd and troubling.

    3. Isn’t there a case to be made that it’s a joint work? And/or whatever interest Bradley has in the photo has been conveyed through license — explicit (via the conditions of his Oscar ceremony ticket or participation) or implied?

    4. If it is a joint work, or if the copyright has been conveyed to Ellen, then why wouldn’t a work-for-hire indeed be in play since presumably Ellen had a contract with the Academy to be host of the Oscars?

    • Ha! No annoyance at all, thanks for the comment. Here are my thoughts:
      1. Fair enough.
      2. Yes, it does from a copyright law perspective. The author, and initial owner, of any copyrighted work is the person (or employer of that person) who actually contributed the original authorship to the work. In your example, you did not contribute any original authorship to the picture (making an assumption here that you did not give the stranger very explicit instructions on how to frame, light, etc., the photograph). Don’t be too troubled by this basic result of copyright law. There are theories, like implied license, that would protect you if the stranger somehow tried to stop you from enjoying the photograph.
      3. Not unless there were some fact indicating that someone else contributed copyrightable authorship (lighting, framing, etc.) to the photograph. I have seen no evidence of such contributions by anyone other than Bradley. It is theoretically possible (though again I have seen no evidence) that something on the Oscar ticket granted a license to the Academy. But that would not affect the ownership of the copyright. Ownership can only be transferred by a written agreement signed by the original owner. I am fairly certain there is no such written agreement transferring ownership to Ellen or the Academy. The requirement of a written transfer has no “Hollywood” exception (or any other for that matter).
      4. Because it is not a joint work, and copyright has not been conveyed to Ellen. Moreover, as noted in my post, a photograph cannot be a work made for hire by an independent contractor because it is not one of the types of works enumerated in Section 101, and even if it were the agreement would have to specifically include a provision saying that the author of the photograph (I still contend this is only Bradley) would take the photograph as a work for hire. I do not believe such an agreement exists.

  6. Mauricio Villegas says:

    If all copyright discussions were left to lawyers, creative industries would have died eons ago.

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