…and the Oscar Selfie Goes To or (the Unexpected Virtue of Being a Fish)

Everyone knows there is competition, hype and controversy over nominations and awards at each year’s contest run by the Academy of Motion Picture Arts & Sciences. The competition culminates in an annual show broadcast around the globe and endearingly referred to as the “Academy Awards,” or simply the “Oscars” – referring to the golden statuette given out during the broadcast and evidencing the winners. In recent years, the hosts of the Oscar broadcasts – some controversial and others not – have changed almost as often as the tidy-whities displayed by Michael Keaton  in this year’s Best Picture winner Birdman or (The Unexpected Virtue of Ignorance). But do you know the legal controversy surrounding the Oscars?

Here are the facts:

Ellen DeGeneres wanted to take a “selfie” together with some of the most famous people in Hollywood, and by “tweeting” the photo, it become the most re-tweeted Twitter post ever. The camera used for the selfie was a Samsung Galaxy Note 3. Samsung is one of the advertisers with the Academy of Motion Picture Arts and Sciences, and Samsung gave it to Ellen for promotional purposes at the event. We don’t know of any agreement between Samsung and either the Academy or Ellen DeGeneres regarding the device or any photos or messages using the Galaxy Note 3. We do know Ellen did not actually take the picture. To get everyone she wanted to fit into the picture, Ellen passed the camera to Bradley Cooper, who had longer arms. He got everyone in the frame and pressed the shutter.

Here is the photo and tweet that resulted, and which immediately went viral when posted on Twitter.

which she then ‘Tweeted’

The picture went viral immediately, has been tweeted more than any photo in the history of Twitter, and the Associated Press asked Ellen if they might use her photo as part of its coverage of the Oscars – which she graciously allowed.

Now the legal plot thickens. Who actually owns the copyright to the picture that was taken and posted? First, we know that even though the photo was taken with a Samsung promotional camera given to Ellen for the event, Samsung has denied ownership rights to the picture. We also know there is strong legal precedent for the copyright belonging to Bradley Cooper. After all, he took the photo, and under traditional principles of authorship under copyright law, the owner of a copyright is the author of the work. In the case of photos, the author is usually the person who snaps the shutter and takes the picture. Indeed, Ellen’s tweet acknowledges that Bradley took the photo. To add to the fun, Twitter’s copyright page notes that: “In general, the photographer and NOT the subject of a photograph is the actual rights holder of the resulting photograph.” Maybe Ellen and Bradley should be co-authors and co-owners?

Did Brad Pitt, Meryl Streep, Kevin Spacey, Julia Roberts, or Jennifer Lawrence help compose or frame the picture? Direct the photo shoot? Then again, isn’t Ellen the photographer/director of the photo shoot, and all the others – including Bradley – simply part of the “crew”? Their compensation is additional worldwide publicity they presumably consented to when they appeared in the photo. Unfortunately, the Copyright Act in the United States requires a “work for hire” agreement to be in writing and be made before the work is created (otherwise an assignment is necessary), and I won’t even dare to get into the question of international rights and treaties that need to be taken into account when digital content goes viral across national boundaries.

It’s not likely anyone will sue anyone over the photo or the tweet – celebrities don’t mind the publicity, especially the “good” kind. But it is a real example of some of the legal issues involved when people snap digital pictures and post them on the Internet. Ultimately, the question arises as to who has the exclusive right, under the copyright laws, to exploit the use of the picture; and although there are a few limited exceptions, any use or distribution of the photo without the owner’s consent would infringe upon the author’s rights.

In this situation, the AP asked Ellen for permission to use the photo as part of its editorial coverage of the event. But does Ellen own the photo? In other words, does she have the rights needed to consent? Remember, the AP distributes the image to its own subscribers around the world to use for their newsgathering and reporting activities.

Historically, when the courts were asked to adjudicate ownership of copyright in photographs, they awarded ownership to the individual who pressed the button to activate the shutter. Who knew that a “photographer” would now be any one of 6 billion people, each with a mobile, wireless digital device in his or her hand.

Now all that said, I don’t know what the fuss is about. Oscar is not an award or even a celebrity. Oscar is a fish…

… and for those scientists at the Academy, it’s a fish known as astronotus ocellatus, naturally found in South America.

Yes, digital rights are complicated. When your photo includes bystanders, friends, or trademarks and you post them online, you either qualify for some exemption or exception when you do so, or you start to inadvertently create a tangled web (pardon the pun) of legal issues. That’s why you need the resources, experience and capabilities of the Entertainment & Media Industry Group at Rimon. Feel free to contact me, Joe Rosenbaum, or any of the lawyers with whom you regularly work at Rimon.