Statute of RyAnne

Readers, you are in luck! This week there were two relevant stories, and it was hard for me to pick just one. They are both just yummy topics. You get the bonus of a double installment this week. Tomorrow’s discussion will center on this past week’s Saturday Night Live Disney themed opening number and later appearing sketch. Be sure to Tune In tomorrow! For today, let’s talk about that Presidential selfie.

The everyday person is now intimately linked to copyright law like no other time in history. With a few clicks on a phone, a person can automatically create content subject to copyright protection. Vacation photos, notes on your novel, song lyrics kept in the memo app, and let’s not forget all those selfies. All are immediately “original works of authorship fixed in a tangible medium.”

This past Oscar® ceremony saw the tweet viewed around the world. Oscar® host Ellen DeGeneres’s phone took a selfie with the likes of Bradley Cooper, Brad Pitt, Meryl Streep, and Jennifer Lawrence just to name a few. In case you had any doubt of the value of the selfie with all of those famous faces, The Hollywood Reporter ran a STORY claiming the selfie is worth $1 Billion! You read that correct – $1 Billion for a snap on a camera phone.

DeGeneres licensed the photo to the Associated Press which immediately created questions. Who actually owns the copyright in the photo? Was DeGeneres the right person to license the photo, thus receiving the income? What about Twitter’s terms of services? Or, was this a paid promotional product placement?

I think before you can even begin to discuss the idea of ownership the first stop should be the terms of use for the service you used, in this case Twitter. Twitter’s terms of service state, “You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Meaning, Twitter can retransmit anything you post, but you retain ownership of your original content and Twitter is not allowed to license out the material to others without your permission.

There is a strong argument that DeGeneres is the copyright owner of the selfie. As far as we know, she had the idea. She gathered the people. She chose the angle of the photo. She provided the “creative spark” for the photograph . She uploaded the photo and presumably could have edited before uploading. However, there is a strong argument that Bradley Cooper owns the photo since he was the one who actually pressed the button to capture the photo. As the article in The Wire pointed out, historically the person who actually presses the shutter is considered the photographer, thus the owner of the photo.

It use to be so simple when photos were taken mainly by devices like below.

That brings us to now with President Obama snapping a selfie with Red Sox player David Ortiz. While many blogs focused on the issue of First Amendment with Samsung, my thought went back to the DeGeneres selfie incident and wondering about who actually owns the copyright in the Presidential selfie. For a more detailed discussion about Right of Publicity read THIS earlier post.

You can watch a discussion with law professor Michael McCann and the First Amendment issues below:

The video footage tends to show that Ortiz was the one who pressed the shutter. This leans in favor of Ortiz being the owner of the selfie. However, to get to the root of ownership over the presidential selfie, it would be necessary to look at the endorsement contract between Ortiz and Samsung. I am willing to bet the terms of the endorsement deal indicate in very clear terms who owns any products Ortiz creates as a result of the Samsung endorsement. It would be interesting to know whether there is work made for hire language in Ortiz’s endorsement deal which would then give all rights to products back to Samsung. Said another way, would the endorsement deal for Ortiz treat Ortiz like an employee whereby Samsung owns all rights to any products created on the phone by way of the endorsement deal? The nerd in me Wants.To.Read.That.Agreement!

I have a feeling this is just the tip of the selfie iceberg. What are your thoughts on this? Will selfies become something people start licensing like film footage and music? How will ownership rights be determined? If the Copyright Act is reformed how will issues like this be rectified or will they? Take part in the conversation below and Stay Tuned In!

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