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…]

Termination of Sound Recording Copyright Transfers – CLE Program

I will be speaking at an upcoming CLE program on one of my favorite topics: recording artists’ recapture of their copyrights from the record labels.  As 2013 (the first year that sound recording copyright transfers will have ever been subject to termination) approaches, this issue is getting on the radar of more and more folks.  I have been dealing with it for over a decade, having briefed the sound recording work for hire issue in the original MP3.com litigation.  The program will take place on Tuesday, January 24 in New York City.

My panel will be part of a much larger intellectual property law CLE program sponsored by the New York State Bar Association Intellectual Property Law Section.  I highly encourage anyone interested in any facet of intellectual property law to attend.  I am not aware of any other program where you can get 8 credit hours of CLE (including 1 hour of ethics credit) for only $125.  Here is a link to the registration materials for those interested, and here is a copy of the full-day program:

Recording Artists Set To Recapture Rights To Classic Albums

The upcoming war between recording artists and their slavemasters, er, I mean record labels, concerning termination of copyright transfers and the related work made for hire issue is a topic near and dear to my heart.  [Read more…]

Doctor Doom Prevails: SDNY holds Jack Kirby’s Iconic Contributions to Marvel Comics Characters Were Works For Hire

  Another decision has come out of the SDNY, Marvel Wolrdwide, Inc. v. Kirby, holding that work commissioned from an independent contractor was work made for hire under the 1909 Act.

In this case, comic book industry Galactus, Marvel, filed a declaratory judgment action seeking a ruling that the Section 304(c) termination notices served by the heirs of legendary comic book artist and co-plotter Jack Kirby were invalid.  The work for hire issue is crucial in termination cases because if work is made for hire, the employer or commissioning party is treated fictionally as the author in the first instance, and the individual who actually created the work can never terminate any transfer to recapture copyright ownership in his or her work.

Kirby, who jointly created many of Marvel’s greatest characters with Stan Lee (including the Fantastic Four as shown in the first issue cover by Kirby depicted above), was not an employee of Marvel at the relevant time period, but rather was an independent contractor, working for 12-14 hours a day and paid on a per-page basis.  There was no written agreement.  Together with Marvel editor Stan Lee, Kirby created several of Marvel’s most famous (and profitable) characters, co-writing the stories and drawing the artwork.

As noted above, the issue in this case was whether Kirby’s contributions to the Marvel canon were works made for hire under the 1909 Act, and the district court granted summary judgment for Marvel, holding that they were. [Read more…]