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On Sunday night, Ellen Degeneres gathered a number of celebrities in the audience at the Oscars for a selfie. Her goal was to break the record for the most retweets of a photo on Twitter (which did happen).As the celebrities were gathering around Ellen and Meryl Streep, Bradley Cooper kneeled in front of the group and held Ellen's Samsung smartphone to snap the photo. His reach was longer. Without those extra inches, The night's Best Supporting Actor winner, Jared Leto, might not have been visible next to Jennifer Lawrence in what will surely become an iconic photo.
— Ellen DeGeneres (@TheEllenShow) March 3, 2014
The next day, the photo was everywhere. With a record number of retweets, how could it not be? To ensure it wasn't violating copyright laws, the Associated Press reached out to Ellen and asked for permission to use the photo in its photo service for subscribers, and Ellen granted the AP editorial rights to use the image. However, others started to ask a question. Does Ellen really own the copyright to the photo?Philip Bump of The Wire tried to get an answer to that question and found himself caught up in the muddy area of copyright law. Unfortunately, after getting input from two entertainment lawyers, the question was never really answered. There is a simple reason. Copyright laws are extremely confusing!
What Content Publishers Should Know
With all of this confusion, what should a content publisher do if he finds himself in a similar position as Ellen, Bradley, or any of the other people and companies that could try to claim copyright ownership of a photo? I spoke with my go-to copyright law expert, intellectual property attorney Kelley Keller, Esq. of The Keller Law Firm, and asked her to share some insights to help content publishers better understand this fuzzy area of copyright law. She explained:
"This is an interesting and thought provoking story about authorship of photographs that certainly raises important questions, but it does not sound a new warning bell for online content publishers. How authorship in these types of cases is ultimately decided neither adds nor subtracts from existing regulations that govern and guide curating and sharing online content, including seeking permissions, understanding the limits of fair use, the DMCA, and assessing liability for infringing user-generated content, among others. "It does, however, bring heightened awareness to challenges online publishers face in securing permissions to incorporate copyrighted content in new works when the identity of the true author is unclear. Given the dramatically shortened news cycle and concomitant demands to deliver digital content in a compelling manner, taking the time to secure permissions, especially in uncertain situations like the now famed “Oscar selfie,” may seem like an archaic imposition. But a copyright interest is still a property right, whether shared in a tangible or electronic format, and our legal system at its most fundamental level requires that we respect it."
So who really owns the Oscars selfie? "Bradley Cooper is undoubtedly an author, but there is a strong case for co-authorship with Ellen," says Kelley.What if a content publisher snaps a selfie with some other people at an event and the photo goes viral. Who owns the copyright? Kelley noted that this hypothetical situation is an extreme simplification, but with that in mind, she explains:
"Bottom-line, the content publisher owns a common law copyright the moment the picture is taken. The key term is “common law.” But he can’t enforce it in a meaningful way without a federal registration. However, if he files an application for registration within three months of first publication (offering to the public for distribution), he can start his efforts to enforce it, but any efforts without the registration will be futile since he can’t really back them up in court. If he wants to make take-down demands or require licensing fees, he must file an application for registration first and should do so immediately after the photo is taken."
These are important lessons for content publishers who want to publish and share images owned by other people and protect images they might own (or share ownership of). When in doubt, ask permission, and never forget the value of a qualified intellectual property attorney both to protect your copyrights and make sure you don't infringe on anyone else's copyrights in your work.