Saper Law’s take on who owns the copyright to the famous OSCAR selfie

On Oscar Sunday, host Ellen DeGeneres set the internet on fire when she had the idea to take a “selfie” composed of some of the most recognizable people in Hollywood. The famous “Oscar Selfie” temporarily shut down Twitter when DeGeneres tweeted the image to her followers, and it soon became the most retweeted post in the history of Twitter. Given the unique gathering of major stars and the spontaneity with which the photo came about, it would be no surprise if celebrity news  organizations, Samsung – whose phone took the picture – and other organizations far and wide tried to capitalize on the immense popularity of the image for their own financial gain.

But, as with all images, there are copyright issues to consider before someone attempts to ride the coattails of the celebrities in the image themselves. A copyright arises when an original work is fixed in a tangible medium of expression, such as a picture or video. The Oscar Selfie therefore became copyrighted as soon as Bradley Cooper snapped the picture, fixing the arrangement of famous celebrities (and celebrity siblings) in a tangible medium. The owner of this copyrighted picture is entitled to the exclusive right to make copies of the work, prepare derivative works, distribute copies of the work to the public, and perform or display the work publicly. Most importantly, these exclusive rights give the owner the ability to profit from the use or dissemination of the copyrighted work, and any third party who uses the work without the owner’s permission would thus be liable for copyright infringement.

But this raises the question: who is the true owner of the Oscar Selfie? Is it DeGeneres, the Oscar host who had the hilarious and brilliant idea to gather some of the most recognizable faces in Hollywood for a selfie? Is it the Academy of Motion Picture Arts and Sciences, who hired DeGeneres to serve as this year’s Oscars host and presumably required her to sign a contract granting the Academy all rights to the show, including the content generated within it by DeGeneres? Or is it Bradley Cooper himself, who actually took the picture in order to capture a wider shot with more celebrities?

To answer this, it is important to understand the rules of authorship in copyright law. In general, the owner of a copyright is the author of the work. In the case of a photograph, the author of the work is typically the person who actually took the photo, fixing the image in a tangible medium.

Thus, Bradley Cooper, who took the Oscar Selfie – even though he was using Ellen’s phone – would appear to be the author and owner of the work

However, it is not that simple. In copyright law, it is possible for more than one person to own a copyrighted work. This concept, known as joint authorship, arises when two or more authors intend that their contributions be merged into inseparable or interdependent parts of a whole. 17 U.S.C. § 101. Each co-author in a joint work is entitled to the same exclusive rights as an individual owner, with the caveat being that a co-author must account to the other co-authors any profits that are made from using or licensing the copyrighted work.

But does the fact that DeGeneres had the idea for the picture, loosely organized the arrangement of the celebrities for it, and owned the phone that the image was ultimately taken on make her a joint author with Cooper? To answer this question, the courts have set out a two-part test: first, the person claiming to be a joint author must prove that he or she made an independently copyrightable contribution to the work; and second, all parties must fully intend to be co-authors at the time the photograph was taken.

In applying this two-part test to the Oscar Selfie, it is unlikely that DeGeneres could be considered a joint author. Under the first element, DeGeneres would argue that it was her creative idea and that she chose the subject matter of the image. However, DeGeneres didn’t really choose the actors that were the subjects in the image. Rather, she chose an area of the audience to organize the picture, and the celebrities in the surrounding area stood closely together for the infamous selfie. In addition, there was very little structure to the arrangement, and DeGeneres made no actual stylistic decisions as to who would be in the picture and who wouldn’t.

Finally, even if DeGeneres could successfully argue that she chose the subjects for the image, the courts have ruled that the “mere selection of subject matter does not create joint authorship.” Tang v. Putruss, 521 F. Supp. 2d 600 (E.D. Mich. 2007). Moreover, DeGeneres would likely not satisfy the requirement that she make an independently copyrightable contribution to the Oscar Selfie.

For the second part of the test – the mutual intent of the parties to be co-authors – DeGeneres would also fail to prove joint authorship. To satisfy this element, both authors must intend to be a co-author of the work. In this case, Cooper said he could take the picture to include more celebrities in the image, and DeGeneres obliged. While there was certainly no time to draw up a co-authorship agreement, Cooper made clear that he wanted to take the picture, thus showing no intent to share ownership of the copyrightable image at that time. Therefore, DeGeneres would not have a case to be considered a joint author of the Oscar Selfie.

Even though DeGeneres is not a joint author, the concept of a work made for hire must also be considered in determining the true owner of the copyright in the Oscar Selfie. A work made for hire is a work prepared by an employee within the scope of his or her employment, or it is a work specially ordered or commissioned where the parties expressly agree in a signed, written instrument that the work shall be considered a work made for hire. If DeGeneres could show that either of these two scenarios was true, then she would be considered the owner of the Oscar Selfie even though Cooper himself took the picture.

Unfortunately for DeGeneres, Cooper is not her employee nor is he considered an independent contractor, so the first scenario does not apply. Further, there was no written agreement between Cooper and DeGeneres stating that the Oscar Selfie would be considered a work made for hire.  Therefore, the image is not considered a work made for hire between Cooper and DeGeneres.

One last wrinkle to consider under the work made for hire doctrine is the relationship between DeGeneres and the Academy. The Academy hired her to host the Oscars, and therefore DeGeneres was acting in her capacity as an employee of the Academy when she took part in the photo. Further,  DeGeneres likely had an agreement with the Academy stating that all copyrightable material that might arise while DeGeneres was hosting would be considered a work made for hire owned by the Academy.

While this would appear to give the Academy some rights in the Oscar Selfie, DeGeneres cannot assign a copyright to something that she does not own. Because Cooper, and not DeGeneres, is the lawful owner of the copyright in the Oscar Selfie, only Cooper could assign such rights to the image to the Academy. Since Cooper and the Academy had no written agreement in place, Cooper would retain ownership of the copyright.

Ultimately, Cooper became the author of the Oscar Selfie as soon as he snapped the picture. Whether he realizes it or not, he has the exclusive right to profit through use of the image, and any use of it without his consent would be considered an infringement of Cooper’s exclusive rights. Thus, any individual or entity looking to profit off of arguably the most famous impromptu image of celebrities in Hollywood history must first get the consent of Mr. Cooper himself. As for Ms. DeGeneres, while she may not be the lawful owner of the Oscar Selfie, she can take solace in knowing that she temporarily broke the internet with just one tweet.

Of course, the above assumes that the Oscar Selfie was an act of spontaneity. This analysis could be moot if Samsung, (who entered into a $20 million advertising deal with ABC, the US network that broadcasts the Oscars, and who gave Ellen the phone used to take the picture), hired the celebrities involved to stage the stunt as a product placement. If the key players signed away their rights, then perhaps it’s actually Samsung that owns the picture. For now, Samsung denies orchestrating the Selfie: “While we were a sponsor of the Oscars and had an integration with ABC, we were delighted to see Ellen organically incorporate the device into the selfie moment that had everyone talking,” it wrote in a statement. “A great surprise for everyone, she captured something that nobody expected.”

Book Daliah Saper!

Interested in featuring Daliah Saper at your next company event or on your TV or radio program?