Winston & Strawn partner Peter Perkowski authored the Recorder article “In a Selfie Situation, Who Owns the Shot?

Three highly publicized selfies recently raised legal questions about copyright ownership and control. Each case holds lessons for photographers, brands, media, and personalities.

Generally speaking, the person who takes a picture owns the copyright. But when a wildlife photographer left his camera out and a monkey used it to snap a selfie, he claimed ownership and sent take-down notices to Wikimedia Commons. Wikimedia refused, arguing that because a non-human took the photo, so the photographer does not own the copyright—in fact, no one does. The Compendium II of Copyright Office Practices says works created "solely" by animals are not copyrightable.

In the case of the “Oscar selfie,” who owns the copyright? While Bradley Cooper snapped the photo on behalf of Ellen DeGeneres, agency informs copyright only in work-for-hire situations. But copyrighted works can have co-owners if each makes an independently copyrightable contribution and qualifies as an author. Authorship of photography, absent a written contract specifying otherwise, is guided by several factors, among them whether the person had artistic control and whether the parties intended to create a joint work. DeGeneres could have a claim to joint ownership as she selected the subject matter herself and arguably controlled other artistic aspects of the shot. She could also argue that there was an implicit understanding of joint ownership between her and Cooper.

The final example is a photo Boston Red Sox player David Ortiz snapped with President Obama during a visit to the White House. Ortiz, who took the photo with a Samsung device and then tweeted it, had signed an endorsement deal with Samsung the day before the White House visit and Samsung later admitted to coaching Ortiz before the event. This could make it a commissioned work, and thus owned by Samsung, though it may not necessarily fit within the categories specified in 17 U.S.C. § 101.

Lawyers should be aware of how authorship, joint ownership, and work-for-hire issues cloud the legal landscape. Contracts, including waivers, releases, sponsorship and work-for-hire agreements, are excellent ways to settle ownership issues before they arise.