Unless you’ve been living under a rock these past few days, you have probably seen the Ellen DeGeneres orchestrated selfie. For a recap, Ellen wanted to beat the all-time record for re-tweets by gathering a gaggle of actors and actresses for a group selfie. She used a Samsung phone for the photo, which was a prop provided by Samsung, one of the sponsors at the Oscars. The camera required some distance to encompass the whole group, so Ellen handed the camera off to Bradley Cooper, who by virtue of being at the front and having with longer arms than Ellen, took the iconic photo.
But who actually owns the copyright for the photo? There are actually four potential players: Bradley Cooper, The Academy of Motion Picture Arts and Sciences, Samsung, and Ellen DeGeneres. The Associated Press thinks it is Ellen DeGeneres. They asked her for permission to use the photo, which she granted. However, traditionally, copyright ownership goes to the photo’s creator, which is usually the person that takes the photo. In this case, that is Bradley Cooper.
All that is required for a creative work to be given copyright protection is that it is an original work, fixed in a tangible medium (which for digital photos means that it is recorded by the cameras sensor), and has a minimal degree of creativity.
Was there even a minimal amount of creativity on the part of Bradley Cooper? Ellen just gave him the camera, but the shot was her idea? Well, the problem with that line of thinking is that ideas are not copyrightable, only the execution of the idea, which in this case came from Cooper.
The requirements for “minimal degree of creativity” is a fairly low bar. In the days of film cameras, using a camera required moderate technical knowledge; choice of film type and that films light sensitivity (ISO), camera types and styles, choice of lens, shutter speed, aperture and a host of other technical consideration all came into play for even the most mundane photos. Those choices were considered creative functions. Today, everyone has a camera in his or her pocket that for the most part, are just point and shoot. The camera does the rest. The photographer can choose filters from Instagram or other apps, but that is really just creating a derivative of the original photo. So in some sense, many of those creative choices are lost.
But still, a person taking a photo composes the shot, chooses the camera angles, captures the correct lighting, and frames the image, etc., which are all creative choices. Even a quick spur of the moment shot, like a selfie, still rises to the level of creativity required for copyright protection.
Copyright usually resides with the person who takes the photo, which in this case is Bradley Cooper.
What about Samsung and the Academy? The camera was not Ellen’s. Samsung provided it by virtue of its advertising agreement with the Academy. Generally, when someone who is hired to take a photo, the copyright holder remains with the photographer. However, in some cases where the photographer is an employee or there is a written agreement that work is “made for hire.,” the copyright holder can be the hiring party. Perhaps if Ellen was directed to create a selfie by Samsung or the Academy, and Ellen’s contract signifies it is a work made for hire, then Samsung or the Academy could be the copyright holder. But we still have the wrinkle that Ellen was not the photographer.
Eric Spiegelman, a Los Angeles Entertainment Lawyer, has an interesting take. He presented a case for sole ownership by DeGeneres in The Wire suggesting that, “Ellen DeGeneres came up with the idea for the selfie and proceeded to execute it. In the process of producing the selfie, it became apparent that she needed a crew, and Bradley Cooper took in upon himself to be this photographer. Ellen DeGeneres, of course, consented to his involvement. At that moment, the services of Bradley Cooper were employed by Ellen Degeneres for some non-financial compensation (the added fame of being a part of Hollywood history, perhaps).
“He goes on to say that, “Usually, when an individual creative contribution becomes part of a “work made for hire,” it’s clearly spelled out in a written contract. Here, the parties did not have enough time to draw up an agreement. But Bradley Cooper has been working in Hollywood long enough to know that when he is employed in the production of a picture, it’s always a “work for hire” situation. On every movie he’s ever made, he signed a contract stating as much. Everyone who contributes anything creative to a film signs a similar agreement. As such, Bradley Cooper is aware of the standard business practice of this industry and can be reasonably expected to operate in the same way in the absence of a written contract.”
Who the real owner is we will probably never know. Copyright ownership will remain with Ellen, unless Cooper, Samsung or the Academy contests it. That doesn’t seem likely, so for now, we can say that Ellen DeGeneres’ selfie holds the record for the most re-tweets.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.