The Associated Press asked Ellen DeGeneres for permission to share her now-famous Oscar selfie with subscribers to their photo service. But does Ellen have the right to give it away? Who owns that picture?
In case you're emerging from a coma long enough to have missed the story but short enough to be aware of the word "selfie," here's what happened. While hosting the Oscars on Sunday night, DeGeneres went into the audience to take a photo with a cluster of Hollywood bigwigs (and one bigwig's brother). Her (successful) goal was to beat the all-time record for retweets, which, as of writing, she's done three times over.
According to Paul Colford of the Associated Press, who spoke with The Wire by phone, the AP simply asked DeGeneres for permission to use the photo, and it was granted. "We reached out to her staff and asked for permission to use her photo," Colford said, adding that they "were allowed to use it for editorial purposes." The agency wrote a quick blog post about it saying exactly that: "Oscar host Ellen DeGeneres granted The Associated Press the rights for the editorial use…"
The problem, according to Los Angeles-area entertainment lawyer Ethan Kirschner, whom The Wire also spoke with, is that DeGeneres might not own the copyright on the photo. "Historically," Kirschner told me, "it's always been the person who pressed the shutter who's technically the person that owns copyright." In part, that's a function of the age of the art of photography; the idea that everyone has his own camera in his pocket is a fairly new one. When the courts were trying to figure out who gets copyright, they "had to assign copyright to someone; they gave it to the person that literally pressed the button."
In the case of the Oscare selfie, that person wasn't DeGeneres — it was actor Bradley Cooper. In her tweet, DeGeneres acknowledges that fact (in case the many television cameras capturing the scene hadn't made it obvious): "If only Bradley's arm was longer," she wrote, joking that more celebs could have been included in the picture. "In this case, if you go by the technical law, Cooper would own the copyright," Kirschner said.