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).