Were you watching the Oscars during this tweet-worthy moment? Host Ellen DeGeneres—who said she wanted to break the record for the most retweets—tweeted this celeb-filled photo from the front row during the Academy Awards show.
The aftermath? A new record was set. Twitter crashed. And the Twitter-sphere soon buzzed with a new legal question: who owns the photo?
So we asked two of our intellectual property professors to take a few minutes out of their busy schedule (well, it was spring break) to settle this burning legal question. On one side, Suffolk Law IP Clinic Director Eve Brown says the Twitter-sphere is right: Bradley Cooper owns the photo. (Brown claims her opinion is not influenced because she and Cooper were classmates at Philadelphia’s Germantown Academy.) On the other side, Suffolk Law Professor Jessica Silbey says: “Ellen is the author, not him.”
What is the law governing photo ownership?
Brown: Copyright ownership in photographs almost always lies with the photographer, which in this case, was Bradley.
Silbey: Simply pressing the camera button is not enough. Copyright ownership of photos goes to the person who exercised control over the framing, angle and composition of the photograph. More than a de minimus exercise of control over composition usually makes you an author. My guess is that Bradley did not exercise any independent control other than to facilitate Ellen’s desired selfie, in which case she is the author, not him.
Could Ellen own it under a work-for-hire doctrine, because the photo was her idea and she arranged it?
Brown: Ideas are not protected by copyright, only the expression of the ideas, meaning that just because Ellen conceived of the idea for the photo, she does not own it if Cooper was the one who actually took the picture. Furthermore, the Copyright Act’s work for hire doctrine generally requires a written and signed agreement or an employee working within the scope of employment. Without a written agreement or an employment relationship, Ellen would have a difficult time proving she owned it as a work for hire.
What about all the celebrities who lent their famous faces to make this such a popular pic?
Brown: Under the doctrine of joint authorship, all of the people in the photo would own it. To prove joint ownership, the A-list stars would have to show that they all intended their individual contributions to be merged into a unitary whole and that each made an independently copyrightable contribution to the photograph.
Silbey: That seems unlikely here. The joint authorship doctrine is a strict standard requiring intention to be authors by all involved.
Could anyone else claim ownership here?
Silbey: All of this analysis is dependent on the selfie being an improvised and not a scripted event that was actually planned by someone other than Ellen. For example, if it was written into the script of the Oscars and Ellen was hired to perform it. And if she was simply performing the role for which she was hired, the "authorship" of the photograph might rest with the owners of the copyright for The Academy Awards who hired her to perform and act in certain ways, including take a “selfie.”
So what does any of this mean, practically, for Ellen, Bradley or any of the other one-name-is-sufficient celebrities in this photo?
Brown: Possibly not much. The owner of a copyright in a photograph is granted the exclusive right to reproduce and publicly exhibit his photographs—with exceptions for news reporting and reviews. It certainly seems as if Cooper’s selfie is ‘newsworthy,’ which may mean that, no matter who owns it, those wishing to re-tweet, upload, and share it on social media are likely free to do so.