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Watts Legal: March 6, 2014

Question: I read online that Ellen Degeneres doesn’t own the selfie she took at the Oscars, even though I think she used her own phone. That got me to wondering: Who owns the pictures on my iPhone? If I post on Facebook a photo of my friends that I took with my iPhone, can one of my friends get me to take it down?

— F.V.
Davis, CA

 

Answer: Any work of art put in a fixed medium of expression is a copyrightable work. The copyright belongs to the author. When a photograph is taken, the author is usually the photographer. During the creation of a photograph, the photographer is the one who put the artistic effort into it by choosing the white balance, or the angle of the shot, or the timing. The photographer is the “artist,” even if this particular photograph required very little actual effort.

Ellen does not own her selfie — or at least the copyright in her selfie — because she was not the photographer. It was actor Bradley Cooper, not Ellen, who stretched out his arm and snapped the most-tweeted photo of all time. Since he used the camera, he owns the copyright unless certain exceptions apply.

Indeed, if an exception applies, the internet ma­­y be wrong about Ellen. A photographer does not own the copyright to his work if he signed over his rights to somebody else like his employer. Photographers for the Associated Press or Reuters, for instance, probably sign employment contracts agreeing that their photographs are works for hire, which means the copyrights belong to the people paying their salaries. If Bradley Cooper signed an agreement to take the photograph for Ellen, and signed a contract to that effect, Ellen, not Cooper, would own the selfie.

And because of a court ruling that came out a couple weeks ago, there’s even the possibility that any actor in the photo could own a small piece of the copyright. In Garcia v. Google, the Ninth Circuit considered whether an actress who played a bit role in the film “Innocence of Muslims” owned a copyright in her performance.

(She wanted the film taken offline; she’d been receiving death threats since the film was dubbed to make it look like she was calling the prophet Mohammed a child molester.)

The director of Innocence of Muslims never made the actress sign an agreement transferring ownership of her performance to him, so the court decided that her performance in the film was an independent work of authorship, and she owned a copyright in her portion of the film. The court ordered Google to take down all copies of the film from YouTube, though emphasized that the takedown order did not apply to versions of the film without the actress’s performance.

Based on that decision, one of the actors appearing in the Oscar selfie photo could argue that they own a copyright in their “performance” — after all, they posed! — and tell Twitter to take the photo down. Twitter would probably fight that in court (and would probably win, since posing for a photo is less of a performance than acting), but it’s not outside the realm of possibility.

If you asked me this question a month ago, I would have said your friends do not own copyrights in photographs you took of them. After Garcia v. Google, it’s a little unclear.

Even if your friends did file a lawsuit against you, they would not be able to win much money unless they took the time (and money) to register the copyright with the federal government. Although an author automatically owns a copyright in every work he creates, he cannot get much money in a lawsuit unless he has paid registration fees to the U.S. Copyright Office. That takes effort that the average college student is probably unwilling to put in.

 

Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.

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