Copyright Law Intellectual Property

Who Owns The Rights to Ellen’s Famous Oscar Selfie?

The most re-tweeted image in history, Ellen Degeneres’ Oscar selfie is all over the internet and already the subject of countless memes. But who owns the rights to it under US Copyright Law?

The answer to that is not entirely clear believe it or not. The reason why its not clear is because its not exactly how “spontaneous” the whole thing was or who was “in on it” from the beginning.

"Ellen's" Oscar Photo -AP Version"
“Ellen’s” Oscar Photo -AP Version”

So let’s start the discussion with the presumption that it was 100% completely spontaneous and not part of Samsung’s $20 Million Oscar campaign. In that case, the answer is Bradley Cooper since it was Bradley’s talented fingers that pushed click. US copyright law always credits the author of the work – the person who created the work- with the holder of the copyright in the work. Therefore even if it was Ellen’s phone (and it was likely not Ellen’s phone but one lent to her by Samsung for the night since she apparently tweeted other photos from backstage from her iPhone), since Bradley pushed the “click” button, he is the author of it and therefore the owner of the image’s rights.

Now Ellen likely has what’s called an “implied license” or “implied consent” to tweet the image out since Bradley knew that was the purpose of the image when Ellen announced she wanted to break the record for the most re-tweeted image of all-time. Under Twitter’s Terms of Use they then get to make non-commercial uses of it but not if Bradley owns it; they could then be stopped by being sent a DMCA takedown notice form Mr. Cooper, if he was so inclined. The DMCA (Digital Millennium Copyright Act) protects ISPs and other providers who allow third parties to post content on their site to be free from copyright claims provided they cease and desist from exhibiting content that someone tells them ins placed on their site in violation of Copyright Law. Ellen could also argue that since she helped frame the shot and told Bradley when to “click” that they composed it “jointly.”

It is also possible that Samsung owns the rights to the image if everyone was aware of the set-up and agreed to participate and if they got something to that effect in writing. Samsung could then argue that the image was a “work for hire” meaning that Bradley and Ellen don’t own any rights to the image. If Samsung did not get it in writing then we’re back to the top of the article since most courts do not recognize “oral” work for hire agreements.

Lupita broWhoever owns the picture can only make a very limited use of it anyway. In order to make money off the picture by say re-selling it or making posters or coffee mugs with it, they would need to get permission from EVERYONE in the picture. Good luck with that, I mean how would you even get the contact information for Academy Award Winner Lupita Nyong’o’s brother, who slipped into the world’s most famous mosh pit? California (where most of the celebs in the picture live) has very strict right-to-privacy and right-to-publicity laws that protect their famous citizens from folks making commercial use of their image. The only images that a re fair game are ones taken of the celebrities when they are in public view; that exception is what paparazzi photogs live off.

Speaking of public view, just because it is on the Internet and Ellen tweeted it publicly does not mean it is in the “public domain” and free for all to use. So why can I use the picture in this blog post? Since I am commenting on it and discussing the actual image, my use would fall under one of the “fair use” exceptions to copyright infringement. “Fair use” is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In US copyright law, fair use permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test which I won’t get into here. But what’s important to note is that the commenting, criticism, or parody must be ABOUT the work. So since I am using the image to comment ABOUT the image, I can display it.But if I was using it to comment about someone in the picture, say Meryl Streep or Kevin Spacey, then I would need permission to use it in that fashion.

I do a lot of legal work in the field of photography and digital images representing both photographers and those subjected to claims of infringement from various photo warehouses like Getty or Masterfile. As you can see, there are a lot of legal issues wrapped up into a tiny photograph. While likely none of these issue will come up in this famous picture since all concerned were happy to participate in it and are wealthy enough not to worry about whose image it is or what is being done with it, it serves as a good template for analysis of the rights involved in imagery.

Here endeth the lesson.

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