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).

Ninth Circuit Rules Acting Performance Independently Copyrightable and Not Part of Joint Work

Copyright SymbolIn what appears to be an appellate case of first impression, the Ninth Circuit has issued a remarkable decision in which the majority holds that an individual actor’s performance of a minor role in a motion picture is independently copyrightable, is not part of a work of joint authorship as embodied in the motion picture, and therefore the performance or distribution of the motion picture without the actor’s permission infringes the actor’s copyright, in the absence of a license.

This case involved the now-infamous Innocence of Muslims film, which offended a large segment of the Islamic community and led to riots and protests overseas.  According to the facts as set forth in the decision, the Plaintiff, Cindy Lee Garcia, was hired by an amateur film-maker to play a minor role in what he described as an action film titled Desert Warrior.  She was only given the four pages of the script in which her character appeared, and worked three and a half days on the set.  That footage was eventually used in an anti-Islamic film titled Innocence of Muslims, in which at least some of Ms. Garcia’s lines were dubbed over so that she appeared to ask whether Mohammed was a child molester.  When the film was aired on Egyptian television and uploaded onto YouTube, protests ensued and fatwas were issued, including one calling for the death of Ms. Garcia.

You might well ask what this all has to do with copyright law.  The answer lies in the DMCA. [Read more…]

Heisman Hostilities: The Tension Between Copyright and Right of Publicity in Celebrity Photographs

Desmond HowardSometimes, when you mess with the bull you get the horns.  Such seems to be the case in a copyright infringement action recently filed by photographer Brian Masck.  The case involves the photo displayed to the left, depicting football legend Desmond Howard.  Mr. Masck took the photograph at a game in 1991, the year that Mr. Howard would go on to win the Heisman Trophy.  The photograph depicts Mr. Howard striking a pose similar to the figure on the Heisman Trophy after making a big play in the game that day.

Over twenty years later, Mr. Masck has filed a lawsuit against several different defendants, claiming that they have infringed his copyright in the photograph by using it without his permission.  Fair enough, and obviously liability would depend upon the specific facts relating to each defendant’s use.   This case gets interesting, however, because Mr. Masck chose to include Mr. Howard, the subject of the photograph, as a defendant. [Read more…]

Holy Utilitarian Object, Batman! Court Rules Batmobile Design Is Copyrighted Character!

Parade Adam WestA California district court has granted DC Comics summary judgment on copyright infringement claims against a manufacturer of famous car replicas, who sold replicas of the versions of the Batmobile depicted in the 1966 television show and the 1989 movie.  The case presented several interesting issues, including ownership and copyrightability.

With respect to ownership, the case was brought by DC Comics, notwithstanding that the two particular versions of the Batmobile copied by the defendant were not created for the comics, but rather were created by the respective television show and movie producers.  The only copyright registrations covering the two versions of the Batmobile at issue in the case listed those production companies, not DC Comics, as the copyright claimants.  [Read more…]

photo by: LaMenta3

Are “Digital Actors” Protected By Copyright?

A company called Digicon Media, LLC has issued a press release, claiming that it has obtained a copyright registration for the “digital persona” of a “virtual Marilyn Monroe.”  Digicon appears to be claiming that the registration broadly covers the exclusive right to a digital representation of Marilyn Monroe’s persona or performance.

It seems to me that Digicon is grossly overstating its rights (at least its rights under copyright law).  Last time I checked, neither “digital actors” nor “digital personas” were classes of works protected by copyright.  Indeed, the registration cited by Digicon is a VA registration, making it likely that the registration covers a particular digital animation as an audiovisual work.  If so, the registered copyright (as opposed to any potential right of publicity issues) would not prevent others from creating their own digital animation featuring a virtual Marilyn Monroe, so long as the second animation was not substantially similar to Digicon’s animation (i.e., different clothing, movement, dialogue, etc.).

There are some other interesting points about the registration.  First, the registration claimant is not Digicon, but rather is an individual by the name of Peter F. Paul.  Mr. Paul is an interesting character in his own right, with a colorful personal background that includes jail time and several unsuccessful bids to wrest the rights to several Marvel Comics characters away from Marvel and Stan Lee.  Also of interest, the registration record notes that Copyright Office correspondence is part of the record.  I would imagine that the issues raised in that correspondence are very interesting, indeed!