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).

  • Pamela Chestek

    Thank you! Finally some­one who writes sen­si­bly about it.

  • Pamela Chestek

    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.

    • http://www.arentfox.com Paul Fak­ler

      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.

  • mike

    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

    • http://www.arentfox.com Paul Fak­ler

      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.

  • Emma Williams

    Inter­est­ing (and infor­ma­tive) post, thank you.

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  • Eriq Gard­ner

    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?

    • http://title17.net Paul Fak­ler

      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.

  • Mauri­cio Villegas

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

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