The word “selfie” has been added to the Oxford English Dictionary and the Scrabble dictionary. However, it has not been litigated in a published copyright decision, and does not appear in the new Copyright Compendium. Selfies and other nontraditional modes of creating photographic artworks are getting into the news, and authors are having a hard time protecting themselves and their works, in part because of a question about who created the works. Some notable examples:
- Can Ellen DeGeneres protect her wildly successful Oscar Selfie when Bradley Cooper actually pressed the button?
- Can David J. Slater protect his famous Monkey Selfie photograph created when a macaque in the wild pressed the button on his camera?
- Can Jennifer Lawrence and other hacking victims protect their illegally hacked private photographs by claiming authorship?
Registration of Selfies
The solution to a cloud over the question of authorship? Register the work for copyright and claim authorship. It only costs $35, you can do it yourself at Copyright.gov without hiring an attorney, gets cursory review on the question of authorship, and it gives you a little extra oomph in your cease and desist letter or your DMCA takedown notice.
You don’t want to lie: that constitutes fraud on the copyright office, which is actionable and can cause you trouble (including a fine of up to $2500). You can be wrong, just not knowingly wrong. Don’t file with knowledge that your claim is inaccurate (17 USC 411), and don’t knowingly make a false representation on your registration application (17 USC 506(e)).
The Monkey Selfie
But if you believe you should be considered the author, it may be worth filing the registration. David J. Slater did just that. He has US copyright registration no. VAu001107228 for the photographs displayed at his website, which includes the Monkey Selfie. In other words, even though the Compendium specifically notes that the US Copyright Office will not register “a photograph taken by a monkey” [see p306 “Human Authorship Requirement”], the Monkey Selfie is registered. Slater continues to fight others who declare that there is no copyright to the Monkey Selfie based on the story of how it was taken. Wikipedia refused to take down the image pursuant to Slater’s request, claiming that he is not the author of the photograph. Under 17 USC 410, the registration “shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” In the case of the Monkey Selfie, this includes that the photograph is copyrightable, and that Slater is the author. Of course, this evidence is rebuttable, and Wikipedia may be the kind of organization that would not be afraid to oppose Slater in court. But with the registration in hand, the court is on Slater’s side, and the burden is on Wikipedia to persuade the court that Slater does not have an authorship claim to the Monkey Selfie.
Opposing Slater in court, Wikipedia would be fighting art history, and may have a hard time coming up with a rule for authorship that does not include the Dadaist and other nontraditional works of Marcel Duchamp and Hans Arp. Slater set up the photos, no matter how remotely or indirectly. He didn’t give his cameras to the monkeys in the hopes that they WOULDN’T take a usable photograph. In spite of the seeming simplicity of the “no monkey photos” rule from the compendium, it doesn’t take much to claim at least some authorship in a work. “When a football game is being covered by four television cameras, with a director guiding the activities of the four cameramen and choosing which of their electronic images are sent out to the public and in what order, there is little doubt that what the cameramen and director are doing constitutes ‘authorship.’” Production Contractors, Inc. v. WGN Continental Broadcasting Co., 622 F. Supp. 1500 (N.D. Ill. 1985).
Ellen’s Oscar Selfie
Ellen would similarly benefit from registering her Oscar Selfie. If Ellen registers her Oscar Selfie, then the law considers her the author of the work until proven otherwise in a court. Can she fairly consider herself the author? The Supreme Court has defined the author on two occasions:
- As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989)
- An author … is ‘he to whom anything owes its origin; originator, maker. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
Reasonably, Ellen could believe that she was the person in charge of taking the photo. There is certainly a strong argument that Ellen is the author of the photo through agency theory, and likely the sole author, in spite of the fact that Bradley Cooper was actually holding the camera. A jointly authored work only comes into being when two (or more) authors intend to combine their contributions into a co-authored work. Ellen didn’t intend that the work was co-authored: she called it hers when it was taken. Bradley says “I’ll take it,” but Ellen protests: “No, I’m doing it.” Chaos ensues, and . Ellen then says “Meryl, can you take it? I can’t get everybody in here.” Bradley says “my arm goes way [further]” and Ellen says “All right.” Bradley has sought permission from Ellen to hold the camera for her picture. She continues taking photos, holding the camera herself, creating a series. Her camera, her idea, her direction, all the classic elements of agency analysis, and definitely an indication that Ellen intended to create a photograph of a group, not a group-authored photograph. Cooper’s contribution to the photograph was functional, not creative, especially when compared to Ellen’s contribution. To paraphrase the Moms Mabley case, Childress v. Taylor, “a photographer does not so easily acquire a co-author.”
Jennifer Lawrence Private Photos
Some scumbag loser hacked into a slew of celebrities’ private photos, including Jennifer Lawrence, and distributed them to the public. Another loser briefly thought it was a good idea to display these private photographs as works of art commenting on the ubiquity of Google, or some other wildly obvious point. That exhibit has been cancelled and changed into something much more appropriately narcissistic, but these photos remain in circulation on the Internet. The celebrities depicted in them are continuing their Sisyphean efforts to have them removed from public.
There is some debate as to whether Lawrence and the other victims of this crime can use copyright law to submit takedown notices under the DMCA. This question becomes moot if the works are registered, with the subject as owner or co-author of the photographs. Some of the hundreds of photographs are selfies, with the subject also the photographer, for which authorship is relatively clear. For the private photographs taken by an unseen photographer, it is certainly plausible that they were joint works created by both the photographer and subject. “We decided to take a photo” seems to cover the joint authorship requirement that both parties intended to create a work jointly. Some jurisdictions require copyrightable contribution in a claim of joint authorship. In the case of these photos, consensual and posed when taken (although non-consensually distributed), the subject could reasonably be defined as performing a “pantomime” — a mute performance with expressive communication – which is considered a protectable work under 17 USC 106. With that as a reasonable claim of authorship, the subject can apply for a copyright registration, and benefit from the presumption of accuracy once issued.
Addendum: No Elephant Paintings
The Copyright Office recently released a list of works that are considered to have no author, called the Human Authorship Requirement. This declaration is considered persuasive in court, but until it is ratified by a decision, it is not binding in court. And I’m sure a clever artist (or more likely, artist’s attorney) could come up with rationale that each of them deserves copyright protection.
“The Office will not register works produced by nature, animals, or plants.”
Human Authorship Requirement
- A photograph taken by a monkey.
- A mural painted by an elephant.
- A claim based on the appearance of actual animal skin.
- A claim based on driftwood that has been shaped and smoothed by the ocean.
- A claim based on cut marks, defects, and other qualities found in natural stone.
- An application for a song naming the Holy Spirit as the author of the work.
COMPENDIUM OF THE U.S. COPYRIGHT OFFICE PRACTICES, Third Edition, p306