The Associated Press asked Ellen DeGeneres for permission to share her now-famous Oscar selfie with subscribers to their photo service. But does Ellen have the right to give it away? Who owns that picture?
In case you're emerging from a coma long enough to have missed the story but short enough to be aware of the word "selfie," here's what happened. While hosting the Oscars on Sunday night, DeGeneres went into the audience to take a photo with a cluster of Hollywood bigwigs (and one bigwig's brother). Her (successful) goal was to beat the all-time record for retweets, which, as of writing, she's done three times over.
According to Paul Colford of the Associated Press, who spoke with The Wire by phone, the AP simply asked DeGeneres for permission to use the photo, and it was granted. "We reached out to her staff and asked for permission to use her photo," Colford said, adding that they "were allowed to use it for editorial purposes." The agency wrote a quick blog post about it saying exactly that: "Oscar host Ellen DeGeneres granted The Associated Press the rights for the editorial use…"
The problem, according to Los Angeles-area entertainment lawyer Ethan Kirschner, whom The Wire also spoke with, is that DeGeneres might not own the copyright on the photo. "Historically," Kirschner told me, "it's always been the person who pressed the shutter who's technically the person that owns copyright." In part, that's a function of the age of the art of photography; the idea that everyone has his own camera in his pocket is a fairly new one. When the courts were trying to figure out who gets copyright, they "had to assign copyright to someone; they gave it to the person that literally pressed the button."
In the case of the Oscare selfie, that person wasn't DeGeneres — it was actor Bradley Cooper. In her tweet, DeGeneres acknowledges that fact (in case the many television cameras capturing the scene hadn't made it obvious): "If only Bradley's arm was longer," she wrote, joking that more celebs could have been included in the picture. "In this case, if you go by the technical law, Cooper would own the copyright," Kirschner said.
And then he continued: "Does anyone else have a claim as a co-author of that photograph?" It's unlikely that Cooper, should he choose to do so, would be able to defend sole copyright in court. (We would, however, love to see that trial.) Kirschner points to the idea of co-authorship, a principle upheld in the case Brod v. General Publishing Group. In that case, a photographer sued a book author for using photos that he'd taken without permission. But since the author had participated in the creation of the images — how they were framed, look at proofs — he was consider a co-owner, granting him the right to publish them. If Ellen needed to keep Cooper at bay, Kirschner thinks, this is how she could do so. And not necessarily only Ellen. It could be a series of suits and counter-suits from Jennifer Lawrence and Kevin Spacey and Brad Pitt and whoever else helped compose the shot could have varying levels of claim.
The big question, though, is whether Samsung can claim copyright. The Verge reports on the phone/camera/everything company's advertising deal with the Academy of Motion Picture Arts and Sciences, the group that puts on the show. Samsung has advertised on the show for years, and — although Ellen used an iPhone for her backstage pictures — the phone used for two selfies onstage was very obviously a Samsung device. Was this an in-show ad? Could Samsung actually own the photo?
Probably not, according to Kirschner. Let's say there was a contract between the Academy or DeGeneres and the phone company. "If Samsung had an agreement with Ellen that they would exclusively own the rights to the photo, that may not then apply to Bradley," he said. So if Samsung tried to enforce an agreement with Ellen (which, again, may not exist), Cooper could again muck up the works, since he's exempt from that agreement, having not, you know, agreed to it. Samsung can't say "we have copyright over all pictures taken on this device."
Could Samsung claim co-owner status, if they, say, told Ellen they'd like her to go into the audience and take a picture with those celebrities? Kirschner doubts it. In the Brod case, "he was a compositional contributor on the shot. It's a hard case to make for Samsung."
So the AP is probably safe in getting sign-off from DeGeneres but, just to be safe, it might be worth checking with Cooper's people as well. Luckily for all involved, ownership of popular images isn't the sort of thing that Hollywood types get litigious about.
Update: Quartz's Zach Seward raises another interesting wrinkle: the distribution method. Twitter doesn't claim copyright of photos published on the service, but only the right to publish it. (This situation, too, has been addressed in court.) In fact, Twitter's copyright page offers a helpful tip. "In general, the photographer and NOT the subject of a photograph is the actual rights holder of the resulting photograph."
Update: Eric Spiegelman, himself an entertainment lawyer in Los Angeles, presents the DeGeneres case for sole ownership.
Ellen Degeneres came up with the idea for the selfie and proceeded to execute it. In the process of producing the selfie, it became apparent that she needed a crew, and Bradley Cooper took in upon himself to be this photographer. Ellen Degeneres, of course, consented to his involvement. At that moment, the services of Bradley Cooper were employed by Ellen Degeneres for some non-financial compensation (the added fame of being a part of Hollywood history, perhaps).
Usually, when an individual creative contribution becomes part of a "work made for hire," it's clearly spelled out in a written contract. Here, the parties did not have enough time to draw up an agreement. But Bradley Cooper has been working in Hollywood long enough to know that when he is employed in the production of a picture, it's always a "work for hire" situation. On every movie he's ever made, he signed a contract stating as much. Everyone who contributes anything creative to a film signs a similar agreement. As such, Bradley Cooper is aware of the standard business practice of this industry and can be reasonably expected to operate in the same way in the absence of a written contract.
Update: James Grimmelmann, professor of law at the University of Maryland, disagrees (strongly) with Spiegelman's assessment.
Except for employees, the Copyright Act requires a signed agreement to make something a work made for hire, which there wasn't. A subsequent transfer of copyright ownership requires a signed writing, too. Which there wasn't. Sometimes people say that no written contract is needed, but the courts don't agree. For example, in Effects Associates v. Cohen, the court said that special effects shots prepared on an oral agreement belonged to the effects house, not the film's producer.