A Law Unto Themselfies

Most of you will have seen or heard about Ellen DeGeneres' all-star selfie taken at this month's Oscars. Whilst hosting the ceremony, Ellen DeGeneres gathered together a group of A-list celebrities, including Brad Pitt, Jennifer Lawrence, Angelina Jolie, Meryl Streep, Kevin Spacey and Lupita Nyong'o, and snapped a photo which she then tweeted (@TheEllenShow). It has beaten the all-time record for retweets, currently at a staggering 3,389,780.

But what are the copyright implications of the so-called selfie? These fall into two main categories: (i) ownership of the photograph and (ii) possible infringement by publishing the tweet and the subsequent retweeting.

Firstly, it is not immediately clear who the owner of copyright in this photo is. To demonstrate the potential legal complexities, here are the basic options:

(i) Bradley: Although Ellen DeGeneres was responsible for arranging the photo and her smartphone was used to take the shot, it was actually Bradley Cooper who stretched out his arm and clicked the shutter. Therefore, as photographer, he is arguably the author and thus owner of this copyright work.

(ii) Bradley and Ellen: Alternatively, Ellen and Bradley may be joint authors of the work on the basis that they both expended sufficient skill and labour to be classed as an author of the resultant image.

(iii) 'The Academy': Otherwise, the owner could be The Academy of Motion Pictures Arts and Science on the basis that the photo was taken in the course of Ellen's employment as host of the Oscars ceremony.

Secondly, if Ellen DeGeneres does not own the copyright in the image, then consideration must be given to whether or not she had authority to publish the photo on Twitter. In turn, she may not have then had authority to consent to the 3 million+ members of the 'Twitterati' who then retweeted the image. Accordingly, each retweet would have constituted an act of infringement on the part of each such Twitter user. However, if Ellen is the owner, it is unlikely that copyright was infringed by subsequent retweets because, as set out in the recent Copyright Notice (March 2014) issued by the Intellectual Property Office,"sharing or posting a simple web link to images posted publicly online by the copyright owner is usually not restricted by copyright".

Of course any intellectual property dispute that does arise would, in the first instance, be governed by US law, but this does raise a thought provoking point in relation to copyright in photographs and the copyright implications associated with social media generally.

For more information on intellectual property please contact Tim Richards, tim.richards@michelmores.com a partner specialising in intellectual property disputes at Michelmores.