Copyright ownership in Ellen Degeneres’ famous Oscar Twitter Selfie, which holds the record for most retweets, might be unclear, but for the average citizen sharing the picture, it doesn’t matter much. Canada’s fair dealing and the United States’ fair use exemptions cover the most common types of sharing and dissemination of the image.
The US Copyright Debate
Following the publication of the famous photo on Twitter, many groups and individuals weighed in on who might actually hold the copyright in the photograph. Twitter is clear in its terms of service for users that, “You retain your rights to any Content you submit, post or display on or through the Services”, but did Ellen own the copyright in the first place? TMZ, American entertainment lawyer Ethan Kirschner, and the Globe and Mail felt the original copyright holder was Bradley Cooper, as he was the smartphone camera holder and operator. Photographers often hold copyright in their works because, in most cases, authors are the initial owners of copyright.
The Associated Press believed that Ellen Degeneres held the original copyright as they sought Degeneres’ approval for their editorial use of her selfie. American entertainment lawyer Eric Spiegelman argued that Ellen holds the copyright because she is the ultimate producer of the selfie. “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),” states Spiegelman.
Legal Week brought up an important point that few within the entertainment industry raised – the works made for hire doctrine defined in Section 101 of Title 17 of the US Code. In that legislation, it states that a work created within the scope of employment is the property of the employer. At first blush, it’s unlikely that a selfie would fall within the scope of show-hosting duties; however, it’s in the realm of possibility that such works could have been foreseen and included within the contract between Degeneres and the Academy of Motion Picture Arts and Sciences. Others thought Samsung might own the photo as part of its $20M advertising and technology supply contract with the Academy as one of the program’s sponsorship deals.
Ultimately, it doesn’t much matter for the average social media user. As an Amercian legal blogger points out in her post, commentators can use the image under the US’ fair use exception.
Fair use – as outlined in Section 107 of Title 17 of the US Code – provides a list of exceptions to what might otherwise be copyright breaches. Included in this list are situations where the use of the work is for criticism, comment, news reporting, teaching, scholarship or research. It also sets out the following four factors that should be considered to determine if the use is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
The coverage of the copyright debate provides a relevant example of what could fall into any of the criticism, comment, news reporting or teaching fair use exceptions. Many of the outlets have implicitly relied on this law when posting up a copy of the selfie alongside their coverage.
The Canadian Comparison
It’s my opinion that the laws in Canada are similar when applied to the “Ellen Selfie” case.
The initial question would be one of contract law – and specifically whether any of the clauses within Degeneres’ hosting contract with the Academy or Samsung’s sponsorship contract with the Academy assigned the rights to this work. Section 13(3) of the Canadian Copyright Act emphasizes that works made under the course of employment can mean that the employer would be considered the first owner of copyright.
Barring this, then the debate boils down to whether the creator of the photo was Degeneres or Cooper. Both sides offer compelling arguments, and a potential outcome could be that the stars are co-authors in copyright as joint collaborators (particularly as two artists participating in live art creation at an industry event). It’s possible that the additional actors featured in the photo could make a joint authorship claim. But as participants further removed from the production and posting of the photo, the more interesting aspect of legal rights for them would be under the topics of privacy and personality/image rights, which are not at issue in this blog post.
Ultimately, as in the US with their fair use exception, fair dealing would cover most Canadians’ usage of the photo. Sections 29, 29.1, and 29.2 of the Canadian Copyright Act cover exceptions to copyright infringement related to research, private study, education, parody or satire, criticism or review, and news reporting. A generous interpretation – as argued by the Supreme Court in CCH Canadian v LSUC, Alberta v Access Copyright and SOCAN v Bell – supports Canadian news outlets and social media users wanting to share and comment on the Oscar photo. Similar to the US’ factors for evaluating fair use, the Canadian common law has six factors it considers, outlined in CCH:
- The purpose of the dealing;
- The character of the dealing;
- The amount of the dealing;
- The alternatives to the dealing;
- The nature of the work; and
- The effect of the dealing on the work.
As an avid follower of copyright jurisprudence, the most exciting part of the Oscar seflie debate has been the very existence of the debate itself. To see so many bloggers and mainstream news outlets covering the question of copyright in the photo has been incredible.
Copyright literacy is crucial, especially for countries and industries that fancy themselves knowledge based or rich in arts and culture. Copyright debates left exclusively to the domain of lawyers diminish the important social and cultural ramifications of such debates.
Because let’s face it, no selfie from a legal awards event has ever been retweeted three million times.
Denise Brunsdon is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher supported by the GRAND (Graphics, Animation and New Media) NCE.