For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Monday, 3 March 2014

Copyright-related question right from the Oscars night: who owns DeGeneres's selfie?

Now that the Oscars have been awarded, there is something left to reflect upon besides why Leonardo DiCaprio seems unable to bring home one of those precious little statues.

No need to say that it is a copyright-related question and concerns what has become the most retweeted tweet ever, this being Ellen Degeneres's all-star selfie featuring Angelina Jolie, Brad Pitt, Meryl Streep, Julia Roberts, Bradley Cooper, Jennifer Lawrence, Lupita Nyong'o [who was not just awarded the Oscar for best supporting actress, but also the prestigious Kataward for best dressed winner], Kevin Spacey and Jared Leto [OMG: don't you love his hair and dream that yours looked the same?].  


Looking at the video documenting the taking of this selfie, it is apparent that the person who pressed the shutter was most-blue-eyed man on earth Bradley Cooper. Ellen DeGeneres however made arrangements for the photo, asked Bradley to take it and eventually published it on Twitter. 

The Associated Press (AP) asked Ellen for permission to reproduce the photograph in question, as if she was the copyright owner. But: is she?

Possible copyright owners could in fact be one of the following:

a- Ellen DeGeneres;
b- Bradley Cooper as the actual author of the selfie;
c- Ellen DeGeneres, Bradley Cooper and also the other subjects portrayed. This could be so under the doctrine of joint authorship, if one argued that all of them had "the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole";
Further option: e- Grumpy Cat?
d- The Academy of Motion Pictures Arts and Sciences. This could be so under the doctrine of works made for hire, although one might wonder whether taking that selfie was "a work prepared by an employee [Ellen DeGeneres as Oscars host] within the scope of his or her employment" as per Section 101 of the US Copyright Act."

According to The Wire - What Matters Now [indeed]the AP is probably safe in getting sign-off from DeGeneres, but it might be worth checking with Cooper's people as well. 

But what do IPKat readers think? Who owns the copyright to the most retweeted tweet (and photograph) in history?

In all this, Merpel wonders whether copyright subsists in this selfie at all, ie whether the selfie is sufficiently original. But she is probably too tired not to think that – yes – there is copyright in this photograph.

28 comments:

SEW RED HOT said...

Or maybe Samsung, as apparently it was a directive to Ellen to use the Samsung phone to take the pic as part of the sponsorship deal!?
Samsung were a sponsor of the Oscars.

Ha Took said...

Can I offer one further possibility?

Apparently it was a shameless plug for Samsung as sponsor of the event. If it was part of the sponsorship deal, would that impact copyright ownership?

Anonymous said...

DeGeneres owns it, and my hair looks better that Leto’s – ombre on a man, pah!

Anonymous said...

work made for hire....
I literally cringe at the lack of thought - this is still an IP blog, is it not...?

Anonymous said...

So, Anonymous of 02:45, you literally cringe at the lack of thought at the suggestion that there may be a 'work for hire'. When you have finished your anonymous cringing, would you like to explain why you think this expansive, not to say elastic, doctrine, cannot apply here? Thank God for Eleonora, and thank goodness for the fact that this is an IP blog, one that is as imaginative and creative as it is informative.

John Enser said...

Surely the answer is that anyone who goes anywhere near the Oscars stage will have signed a release handing over all their rights to the Academy - so irrespective of who was the first owner, it is now owned by the Academy?

Anonymous said...

Many EU MSs' laws would in fact allow,in substance, something akin to a "work for hire". This includes contractual arrangements for the transfer of owernship prior to creation of the work and upon creation.There are a couple of notable exceptions of national law where it would be effectively precluded. As regards EU law, two directives which are strictly not relevant to this type of work (software and databases)allows for it. I say strictly as there has been no discussion on what the "work" is here -is an original digital photo a piece of software (Directive 2009/24)or is it merely an image subject to both Directive 2006/115 and 2001/29 (Eva-Maria Painer judgment).

Clive Bruton said...

That Samsung is involved is important, not only because DeGeneres might be seen as an employee, but also because if Samsung has directed her to take the image then it may be seen as the "producer", and thus gain authorship rights (through its economic input).

Anonymous said...

Anonymous @ 8:34,

Imagination and 'creativity' need to be somehow tied to the concept being imagined.

For what business purpose - a priori - would an extemporaneous selfie serve as as? While I 'indulge' in anonymous cringing, you indulge in anonymous support of the banal use of terms of art. I believe that I have the better position.

Anonymous @ 10:50,

The point of the comment was not that there could not be some work made for hire scenario. The point was that the author here used the term with NO support of any such work made for hire scenario. It was a throw-away use of a term of art. Some may try to see this as creative - I do not. You strain beyond credibility by trying to make the selfie a 'piece of software.'

Anonymous said...

Ah -not all anonymous contributors are the same and the comments on software et al and EU law in general were by a different but also another anonymous contributor and made at 10.50am.Those remarks including those about software were fairly uncontentious. Btw, remaining anonymous is essential for some of us contributors perhaps more so than others. The fact that we, nevertheless, choose to contribute to the debate and to throw open issues, should invite debate and not foreclose it with a comment about "strain[ing] beyond credibility". Cos you never know -so please do not dismiss the software argument out of hand. Indeed, one could add, the fact that a highly sophisticated piece of kit captures an image just like that arguably might not even be protected by any right. Not sure if the CJEU would dismiss any of these arguments out of hand if asked.

Anonymous said...

Anonymice at 17:22 and 10:50,

While I enjoy discussions, legal discussions should have a minimum floor of understanding and the thought that a picture is somehow "software" is well below that floor.

Anonymous said...

>"software" is well below that floor.

Is it data then? Must be a database right invoked!

Anonymous said...

Just about anything 'digital' , is a set of instructions - i.e code: software, that has to run through a interpreter before it becomes a image or a piece of music or whatever.

Anonymous said...

It is not a "selfie" it's a "groupie"

Anonymous said...

(sigh)

Remove the floor and watch the freefall...

"Everything" is instructions...
"Everything" is softwares...
"Everything" is maths...
"Everything" is free...
Nothing belongs to anyone...
It is all 'to the people'...
To each according to their needs...

Fun game, this ultimate drive to utter absurdity.

Anonymous said...

Anonymous @22.40, the remark by anonymous @17.22 and 10.50 that you deem below the floor of a legal discussion, is probably now the basis of a two page analyis for consideration in some forum on its merits. That contributor, one guesses,was simply trying to find legal arguments as to how a digital photo merits protection and if so which EU legal regime applies. One possibility (not necessarily the brainchild or lame duck argument of the contributor) was software. One can see the good sides after UsedSoft -all the many possibilities opened up by the judgment in UsedSoft e.g. can you sell the memory stick with the pictures on it, for example. Are the rights exhausted? No doubt, the conclusion of the contributor was that on balance and following Nintendo, it was Directive 2001/29 provided the originality threshold is met and it may not be the case; and further Article 5(1) might stand in its way as interpreted in Premier League where the Court thought moving images on the TV screen were exlcuded. One way round this , is that it might become a work after it is edited and uploded elsewhere and once it has left the camera but not while it remains in it. One can also see the many downsides in according any old images recorded by a digital camera full copyright protection.The fact that they have value in the market place is not an EU law consideration for the purposes of originality.The judgment in Eva Maria Painer strains at the leash to give protection to school protrait photos taken by a proper photographer. However, your proposition that the software argument should be dismissed in one line as belowing the base line for discussion is not in itself a legal argument and would not get that contributor very far for whatever purpose the contributor invited comments on the point.

Ashley Roughton said...

Assuming that the law we are interested in is UK copyright law and not the US law (the US law of copyright or any other right for that matter by the way is that if you are a party in US proceedings and your opponent is foreign and you are American then you win).

It is not enough to say that DeGeneres asked Cooper to take the photo and it not enough to say that she made the arrangements for the photograph to be taken. The question is whether Cooper was, to all intents and purposes, a robot obeying each and every of DeGeneres' instructions or whether he wholly contributed to the photograph being taken or whether it was a joint effort. There just ain't enough to tell 'tween a-c.

Ashley

Anonymous said...

And apologies for the typos in the contribution Anonymous@15.43. Awkward tool this comment box.

Ashley Roughton said...

Also has anybody noticed the striking similarity between Ellen DeGeres (Dory in Finding Nemo and various other plaudits)and Edie Falco (The Sopranos and Nurse Jackie)? Could they, perhaps by some strange coincidence or accident of birth, be related? I think that we should be told.

Ashley

Anonymous said...

Anonymous @ 15:43,

is probably now the basis of a two page analyis for consideration in some forum

Doubtful. But I see that you want to excuse a vacuous comment as being proper because it just might “serve as a basis” to a completely unrelated topic somewhere (anywhere) else.

That contributor, one guesses

Given how little was actually supplied, “one guesses” is a starting requirement – and even then, one can guess in any imaginable direction. My post desired one major change: actually tie in (so one does not have to haphazardly guess) a legal notion to the actual legal words used.

Such was absent.

One possibility (not necessarily the brainchild or lame duck argument of the contributor) was software.

Any such guess is pure conjecture given the lack of substance. This particular conjecture of software is a particularly offensive stretch as it applies the asinine anti-software patent mantra to an indefensible limit that a photograph is ‘softwares.’ The post had nothing to do with the media used to capture the image – that is quite besides the point. Clearly.

One can also see the many downsides in according any old images recorded by a digital camera full copyright protection.

You are now in a completely different discussion. When you are done, please move the goalposts back to the story and comments actually begin discussed.

The fact that they have value in the market place is not an EU law consideration for the purposes of originality.

Nice strawman, but it is not clear just who was arguing against your position though.

your proposition that the software argument should be dismissed in one line as belowing the base line for discussion is not in itself a legal argument

Again, nice strawman – my noting that the comment was untethered was absolutely correct and whether or not a completely separate argument – said subject not being present – is served by my comment and whether my comment can be a ‘legal argument’ in a completely separate discussion is quite frankly, well beyond the point of the present discussion. I am certain that I can take any comment by anyone on any discussion and, using your approach, make the same non-sequitur statement.

Congratulations on being off-point.

Anonymous said...

My vote is for the Academy and Samsung as owners, but I doubt they will exercise any rights since they prefer good PR and advertising, which they got.

Anonymous said...

How to win friends and influence people. Am I the only to suspect that an anonymous contributor in this thread here might be in a position to shape this entire debate and its outcome whether you like it or not. Be nice people, be nice.

Francis Davey said...

I'm surprised at some of the negativity about the "software" remark. While I don't think it applies in this case, many people do not appreciate (and this includes many lawyers) that many file formats are, or are at least capable of being, the equivalent of computer programs.

For example postscript (and therefore to some extent PDF) is a Turing-powerful language that allows complex programs to be run. While it is intended to be used to describe the layout of pages, it *can* be used to do complex computations of any kind.

This fact was something we took advantage of as students when CPU was in short supply but we had access to laserprinters that were often more powerful than the computers we were using. A suitably written print job in postscript might do the trick.

EU Copyright has 3 (or 4 if you include the mysterious "other photographs" which may well be relevant here) categories of copyright: databases, software and everything else (INFOSOC copyright). Each with its own directive and each with slightly different modalities.

As we now know the same work may overlap all categories - so a computer program may also be an artistic or literary work or perhaps even a database. It may be that a PDF could be a program and a work of art at the same time.

There are even (good) books exploring the topic of overlapping rights, though usually not drilled down to this sort of detail.

If and when the CJEU tell us whether Usedsoft applies to other forms of copyright (yes they say it is a lex specialist, but if you read the judgment closely it leaves the door open for exhaustion applied to other digital goods) we may know how much this matters.

The answer to the original question - from a UK law perspective at least - is easily stated. The first owner of the copyright (if not made in the course of employment) will be the author. Now you just have to convince your judge as to who the author is based on all the facts of the case :-).

Lastly, my interpretation of the rule on judicial blogging is that a judge may not comment on a blog post anonymously (if you aren't allowed to blog anonymously it would seem odd if you could comment) but I accept it isn't clear. As a rule of thumb I assume that judges will always post with their names but that they can't (by the same oddly written set of rules) then admit to being judges.

Anonymous said...

This is exactly the wrong take-away:

"many people do not appreciate (and this includes many lawyers) that many file formats are, or are at least capable of being, the equivalent of computer programs."

No. No. No. A million times no.

One does not so willy-nilly apply definitions thusly. Law - especially law and most especially intellectual property law seeks clarity through its sensitivity to definitions, and the above is simply too wrong to consider.

Too then excuse the inaccuracy by noting overlap would be to confuse patent protection with copyright protection just because software can be covered by both. Sorry - but us lawyers demand a higher bar when it comes to discussions of our craft.

Anonymous said...

Unfortunately when it comes to 'things' digital there is no clear boundary between object and code.

Anonymous said...

The errors continue with "when it comes to 'things' digital there is no clear boundary between object and code"

Clearly, the statement on boundaries is conflation rather than clarity. It is also clearly false. Only with an intent to not understand can any "everything is softwares" type of mantra be peddled here.

One only has to visit the anti-software patent blogs to understand the game plan of FUD that those wanting to block any intellectual property right to software employ. This conflation is part of that plan.

Anonymous said...

Suggest that you have a read of Douglas R Hofstadter what code( isomorphism), means.

Anonymous said...

Anonymous @ 23:39,

That's exactly the type of "softwares is everything" nonsense that needs to be expunged when it comes to law.

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