User:Abd/Bystander photos

The purpose of this study. I became involved in assisting a user on Wikiversity, my home wiki, a man almost 80 years old, who did not understand much of what was happening with his work. That led me to deletions here, where one of a number of deletion reasons was that he had claimed "own work," but was in the photo himself. That led me to the issue of bystander selfies. As there are many photos involved for him, instead of arguing these one-by-one, which, then would waste a lot of user and administrator time, I began researching the question with a view toward discovering Commons policy or guidelines on this, or helping develop them if they don't exist, rather than engaging in extensive argument over each case.

Anyone may edit this page, but please sign contributions. In my user space, I am responsible for this page.

I'm collecting research on the issue of copyright for photographs taken by a bystander. Many times, I've been somewhere and have been asked to take a photo for strangers, and I've done it. I have never been asked for a release, and I have always assumed that it was *their* photograph, not mine, I only performed as their servant. However, copyright law, as described on Commons, only seems to contemplate photography for hire, and with an explicit signed release of rights by the photographer. This is counter-intuitive. Such results can happen when law is designed only to consider certain situations and not others. I'm guessing at this point that there is no case law. I have not yet read the actual statutes. It's relevant because there is a video file currently under a deletion request where the camera may have been held, for a short time, by a bystander. Who has rights to that video? Given no written release, and given the law as it is being interpreted, the bystander does. I can "ask" a tripod to hold the camera, and I still own the rights. If I "ask" a bystander to push a button, for a set-up photo, does that create ownership? In many cases, then, where something like this has happened, ownership cannot be established. It would be interesting if such a photo turned out to be valuable, and then the bystander claimed rights. What would a court decide?

• [1] fair use of bystander photo on Wikipedia. However, in this case, the bystander was the photographer, in every way.
• [2] This is an article that was published in on thecopyrightandnewmedialawnewsletter.com, though to view that directly requires a subscription. I presume copyright expertise by the author. The author concludes that Ellen, who published the photo as a "selfie," but who actually handed her phone to someone else, was the "creator" of the image. Which is my sense under common law. --Abd (talk) 17:32, 21 February 2015 (UTC)

Anything else?

This question was asked on Photo.net. Answers varied. An number of professional photographers stated that they would never claim ownership of a photo taken as a "bystander selfie." There was a general opinion that a copyright claim by a bystander who pushed the button -- even if they framed the picture --, and then turned over the camera and walked away, would never get to court if later raised. The issue clearly hinges on the meaning of "creator." --Abd (talk) 02:32, 10 March 2015 (UTC)

Substantial discussions of this issue on-wiki

Commons_talk:Own_work#Possible_incorrect_claim.

User discussion

On a user talk page, the following comments were made,[3] and I'll reply here, interspersed, signing my assertions. --Abd (talk) 21:13, 10 March 2015 (UTC)

"My objection here is to the asserted fixed position that the "creator" is always the person who pushes the button" What is the legal basis for that objection, and for the implicit contention that copyright would instead vest in the requester/camera owner because either the photographer "seeks and takes no credit" or would be difficult to find?

This was my objection. The legal basis for the objection is not as narrow as the writer asserts. Rather, a court would consider the entire context, and specifically the conduct and expectations of the parties. In a "bystander selfie," the assumption of all involved is that the photo will belong to the subject. Under the old copyright law, this would have been very clear. The Berne Convention creates some language that can make it appear otherwise, and many have issued opinions based on this appearance, but this has, so far, not been tested. The user, below, asserts law and precedent, which I will examine for guidance.

There has been some consideration of the issues by experts, and they have disagreed. Yet I see, on Commons, quite a number of users who are very sure of their opinions. --Abd (talk) 21:13, 10 March 2015 (UTC)

Per the US Copyright Office, "The author of a work is responsible for its creation. Normally, the author is the person who actually creates the authorship being claimed. The only exception occurs when authorship is created as a work made for hire." (emphasis mine)

"The person who actually creates the authorship being claimed," who is that person? What is "actual creation," and how is it known? What does "responsible" mean? Copyright law was generally created for the support of professionals and others creating work in hope of gain (or others seeking to protect work from claims by others). Under almost all situations, there is little difficulty determining who the "author" is. However, I find the language there difficult to parse. How are author and authorship different? It seems to me that it is confusion of authorship with ownership, a distinct matter. That's what happens with bureaucrats.... Copyright Office advice for authors has no particular legal standing. A court might decide to follow it, or might decide to ignore it.

A "work made for hire" is a term defined by statute and would not generally exist in the passerby scenario.

It exists by analogy only. The work in a bystander selfie -- minimal -- is not "for hire" because there is no compensation or contract. Because a court may look to normal social expectations, it might decide to consider the common-law meanings, not only the statutory ones.

Indeed, it is very well established that the person who causes the work to be fixed in a tangible medium (see 17 U.S.C. § 102) -- i.e., the photographer, creator -- is the author.

Watch out for "explanations" that are not in the statute. They incorporate the very assumptions being questioned. Who is the "photographer," who is the "creator"?

And there is a further matter that a court would consider, the abandonment of a claim, such that the claim is not recoverable. Here is how a matter might eventually come to trial: A person asks a bystander to take a photo of them. The bystander does so, hands over the camera, and leaves. Later, this photo becomes valuable, and the subject claims copyright. Another publishes the photo without permission, claiming that the claimed owner does not own copyright, rather someone else does, who has not objected. So the subject sues. Who will prevail?

There is another problem here. "Fixed in a tangible medium?" What is that? This term was incorporated in law when it had a particular meaning, "tangible" was literally something you could touch. I'd still wonder about latent images on films, when do they become "tangible"? Was this ever tested? I think it was intended to distinguish between thought and idea, and physical arrangement of matter. However, "fixed" is unclear. A film is variable until "fixed," literally, with "fixer."

Creation is a process, it does not take place at some single instant, but the interpretations of the law we have been seeing appear to assume that.

17 USC 102 brings up some issues that were not addressed. I will cover this below specially. --Abd (talk) 21:13, 10 March 2015 (UTC)

Thurgood Marshall found in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) that, "[a]s 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."

[4] This was a work for hire, explicitly, but without contract. It must be noticed that this went to the Supreme Court because there was difference of opinion. Under the old law, no question, CCNV would have owned the copyright. The District Court found for them. The Appeals Court reversed on what I will call technical grounds, quite averse to the old common law, but depending on more modern interpretations that distinguish between employees and contractors.

Thurgood Marshall's extensive opinion is mostly on distinguishing "employee" from "contractor." He found that CCNV might be considered a co-author, and a co-author would have rights. It's remarkable to see this case and consider the Monkey selfie. Were the monkey a human, the photographer might be, under this thinking, a co-author, and would have rights, but by the Copyright Office interpretation, the photographer loses his rights because his "co-author" was a monkey. In fact, that CO opinion did violence to the concept of "author," which requires intention.

See also: Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1071 (7th Cir. 1994) (person who fixes ideas in tangible expression qualifies as author);

[5]. Again, this begs the question. What is the act of "fixing'? Does context matter at all?

This case examines an important point, the issue of the apparent intention of the parties.

Rarely will minor contributors have the presumption to claim authorship status. In such easy cases, the parties' intent as to authorship status likely will be apparent without resort to any formal test evaluating the parties' respective contributions to discern intent.

If this case were on point, specifically, I'd consider that comment decisive. However, this was not a bystander photo case, nor was it like one. There was substantial collaboration, but one party's collaboration was, as I have superficially read it, contributing ideas, which are not copyrightable, whereas the other, the script writer, contributed script, a tangible expression. Even then, the court only ruled that the script writer "is very likely to succeed on the merits of her claims for copyright infringement."

Childress v. Taylor, 945 F.2d 500, 507 (2d Cir. 1991) (expression must be fixed before creator is considered author);

[6] This is a very interesting case where Defendant Clarice Taylor had an idea for a play and assembled material. She then contacted Plaintiff, playwright Alice Childress, to write the script. Taylor later did more research at Childress's request. From the record, " Taylor contributed facts and details about "Moms" Mabley's life and discussed some of them with Childress. However, Childress was responsible for the actual structure of the play and the dialogue." This case has some interesting details that relate peripherally to our issue, that I'm not covering at this time. These judges are not simplistic, they recognize that counterarguments exist, and here is one, from a dissenting option by Judge Friendly:

He suggested that the "work for hire" doctrine, whether applied to employees or independent contractors (commissioned works) squares with the constitutional concept because vesting rights of authorship in the employer is what the parties "contemplated at the time of contracting, or at least what they probably would have contemplated if they had thought about it."

That kind of consideration: what the parties would agree to if they thought about it, when it is apparent, is very much at the core of the bystander selfie issue. If somehow the issue of copyright came up, what would happen.

1. The bystander says, "Sure, I'll take the photo if I own the copyright."

2. The bystander says, "No problem, and takes the camera," and the subject says, "I'm a Wikipedia editor and I want to use this photo on my User page, do you release ownership to me? Here, let me record you saying this with my phone."

What would happen. First case, almost certainly, the subject says, "Thanks but no thanks."

In the second case, I only know what I would do, and what almost everyone would expect: "No problem, My name is XXX and I release all claims to this photo to you."

It's called common sense, and courts do follow it, unless the statute is so restrictive that they cannot. They will also consider, as shown in one of these cases, what is practical. --Abd (talk) 21:13, 10 March 2015 (UTC)

Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990) (person must translate ideas into copyrightable expression to be considered author);

[7] I have not reviewed this in detail, so far off-point does it seem. These cases involve substantial property, and expectations of parties. With a bystander selfie, expectations are socially clear: unless something is said to the contrary, there is no expectation of right on the part of the bystander, and, above, where the "bystanders" were professional photographers, they nevertheless had no expectations. If a case ever arises, it will almost certainly be a matter of some later conditions altering that, of the "bystander" seeing some opportunity to make a claim. My opinion is that unless the bystander can show something unusual, there is zero chance of prevailing. --Abd (talk) 21:13, 10 March 2015 (UTC)

Riley Home Bldg. Corp. v. Cosgrove, 864 F. Supp. 1034, 1037 (D. Fan. 1994) (copyright ownership vests only in person who creates fixed, tangible expression); [8]. Again, no careful study, the situation was very different from a bystander selfie. Statements of law intended to be applied in a specific situation -- that's what courts do! -- may not apply to other situations. Understanding the difference, understanding the application of precedent, is a major part of the training of lawyers. Dicta in judgments, even Supreme Court judgments, do not create law, though they may guide. The kind of discretion and deep judgment required to apply precedent to cases, with a reasonable expectation that courts will affirm the developed position, is rare, which is one reason why lawyers can make so much money! Non-lawyers (and some lawyers) imagine that law is a cut and dried thing, clear, it's this and not that. --Abd (talk) 21:13, 10 March 2015 (UTC)

Balkin v. Wilson, 863 F. Supp. 523, 527-28 (W.D. Mich. 1994) (one must fix idea into tangible form to be author); etc. Эlcobbola _talk 18:33, 10 March 2015 (UTC)

[9]. I read the facts in this case, at the beginning, and anticipated the judgment, before reading further. Summary judgment for plaintiff. I write as I read. So, now, I read the end. Summary judgment for plaintiff.

What is so odd here is that elcobbola spent so much effort putting together this list of cases, when it is almost completely off point. Bystander selfies push well beyond the edges of what has been decided in the courts. There is a possible case that is related, the w:Monkey selfie, which could be tested in the courts, there is enough money involved to make this possible, but even that case may not decide this matter. Perhaps this matter has been discussed before so those sources were at hand. If so, I'd appreciate references to the place. --Abd (talk) 21:13, 10 March 2015 (UTC)

Transfer of copyright

Commons_talk:Transfer_of_copyright

The situation there was similar to a bystander selfie. An actual situation was resolved through OTRS, and see the deletion request, Commons:Deletion_requests/File:Wikimedia_November_Metrics_Meeting_Photo_21.jpg. In that discussion, remarkably, the issue turned on the uploader's credibility, and that the uploader was a WMF employee, so that the uploader's work was released in that way, but the actual photographer, the holder of the camera and the one who snapped the photo, a volunteer, was not seen in the close as having any rights.

The close then referred to m:Wikilegal/Authorship_and_Copyright_Ownership#The_Example_of_the_Third_Party_Photographer, which is a Wikimedia Foundation preliminary position on a legal issue, from May, 2014. It is on point. It states:

The main factors the courts look at when determining authorship is the degree of control the person exercised over the final product[12] and the degree of originality employed.

I will note that it does not state that these are the only factors. However, in the case of a bystander selfie, it could be argued that "control over the final product" is transferred to the owner of the camera when the camera is handed over with no restrictions.

Then the document is explicit:

If someone wanted to take a picture of himself at a particular time and place, posed in a certain manner, but did not have a timer or tripod, and asked someone else to take the photo for him, most likely the person asking someone else to take his photo would be considered the sole author.

[...]

Determining who is the author of a work is a fact-specific analysis under U.S. law. Particularly important for determining authorship is the amount of control the author had and if the final product duplicated his conceptions and visions. The author, in most cases, is the sole copyright holder and can do whatever he wishes with his work, such as licensing it for use on Commons or posting it elsewhere.

• Another discussion:

Commons_talk:Licensing/Archive_20#A stranger takes a photo of me with my own camera, who owns the copyright?.

As with many discussions of the issue, this one starts with an assumption that the "stranger" is the "author" of the photograph. Because "authors" enjoy copyright, except under narrow circumstances, then discussion focuses on "transfer," which, then, requires specific actions be taken. In this study, I'm finding several lines of thinking that converge: first is that with a bystander selfie, the author is the person who set up the picture, who "projected" the self-image. This would be similar to a tape recording of a musician, where a bystander holds a sound recorder and presses the Record button. The creation is by the musician, very clearly.

The *most* than can be claimed is that the person and the "photographer" have joint ownership. Then we get into issues of surrender of rights and transfer, and whether or not such a joint ownership exists if never pursued or maintained or asserted by the "photographer." In a number of deletion discussions, the surrender of the camera was taken as an implicit transfer.

As with many discussions of this issue, there was no conclusion. So policy remains unclear, the community never makes a decision, users are without guidance, and may upload photos, using them in pages, and then years later someone notices that it's a bystander selfie, and then periodically there is some eruption.

Village Pump

I started this discussion: Commons:Village_pump/Copyright/Archive/2015/02#Copyright_on_selfie-by-bystander. No resolution, but a substantial, detailed, and cogent opinion by User:Clindberg, worth reading. In the end, no specific opinion was given about the common situation, that of a pure bystander selfie. The Ellen selfie is a bit of a red herring, because in that photo, the holder of the camera was also in the photo, making his rule dual. Yet the practical conclusion was that Ellen was able to unilaterally grant permission for use of the photo. In this case, the holder of the camera was not some unknown bystander, but was explicit from the photo itself, identity and role known. A number of arguments that could be made for his (sole or joint) ownership would not apply to an ordinary bystander selfie.

Commons:Upload help

27 May 2013, question asked about: [...]

• 2. The photographs were taken by a random bystander of the subject at the subject's request using the subject's camera and there is no record of who the photographer was or how to contact them
• 3. The photographs were taken at the request and direction of the owner by a third party who was in effect, holding the camera and pressing the button, either employed to do so, or as a favour.

The answer given was

• "You probably can't upload 2."
• "For 3. you may be accepted as the 'producer' and have copyrights to the images with a verbal contract. That may depend on which country they were taken in."

Situation 2 and 3 are quite similar. The difference may only be knowledge of the bystander's identity.

17 USC 102

[10] Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

This narrows the matter considerably. However, it incorporates "original works of authorship." It refers to "later developed." Congress was attempting to deal with the issue, i.e., covering undeveloped film. So if there is "original work of authorship" that leaves something in the physical world, that might possibly be communicated, copyright protection subsists. Ontological problems exist here, I may return to this. --Abd (talk) 21:13, 10 March 2015 (UTC)

Defining "author" for purposes of copyright

[11] is a 1996 article, by Russ Versteeg, from the American University Law Review, on this topic. The article cites many of the same sources as were reviewed above, but covers them with nuance, pointing out differences in opinion and among courts. It talks about the "majority view" and the "minority view," where what was apparently argued by the user above is the "majority view." (That is, as to what was being argued, which is not the issue for this page, though it may be related).

Reading this article, my reaction was, "My God, someone is finally talking sense." He is pointing out how there are contradictions between the precedents. And he is coming to a proposal for a deeper understanding of "author," that could harmonize conflicts in prior cases, and bring, as well, copyright law into closer correspondence with natural expectations.

Again, this is the opinion of an expert, not a settled matter of law. If the Monkey selfie case ever reaches an appeals court, we may see a resolution. Meanwhile, these are possible arguments

Authorship requires creative intention

In the Monkey selfie case, the monkey presumably had no intention to create a photograph. The monkey was simply pressing a shutter release, apparently fascinated by the sound it made, and looking at the camera, which was the source of the sound. That situation was deliberately set up by the photographer. There is no doubt of a creative intention on the part of the photographer. Further, the photographer was the "communicator" of the work, i.e., fits Versteeg's definition of "author" for copyright purposes.

Bystander's intention

The bystander does intend to create a photograph. However, the intention is to create property for the subject, not property for the bystander. This intention is clearly realized when the bystander hands over the camera and makes no effort to establish any further relationship with the latent image in the camera, nor with the communication of that, and frequently there is no exchange of identity information. No case has been found where such a bystander has claimed copyright, nor is such a case ever likely to arise, it would be radically outside of social norms. As shown in linked material above, professional photographers, who even exercised artistic skill in the creation of a bystander selfie, stated that they would never claim rights.

Common understanding

It has come to be common Commons practice to challenge bystander selfies that were claimed as "own work," and in a recent case, where a user had claimed "own work," but a video was obviously from a camera held by someone else, an administrator not only called the user a "liar," but adduced evidence from an irrelevant court case where the user had lost a lease because of failure to provide full information. (The case did not find "lying")

In fact, there are many, many examples where a user claimed "own work," where what they were expressing was their belief that they "owned" it, and, as well, they had caused it to be created. If I make a painting by tossing paint in the air, which then falls onto a canvas, have I created the painting or has gravity created it? Versteeg resolves this issue!

In the set of works uploaded by the user as "own work," creative action by the user was clear. The user created the setup, designed what was to be shown, and then physically acted out the design, having handed a video camera to someone. If I wrote a song and performed it, and asked a bystander to press Record on a device, does the bystander own exclusive copyright to my song and performance? Do they own copyright to the recording itself. How about a sound engineer at a studio? Or does their employer, the studio, own copyright? Normally, where people's livelihoods are at stake, there are formal written agreements that cover these matters.

With a bystander selfie, there is almost never any formal agreement, and the reason for that is that people expect equity.

By taking a strict position, that has never been tested in a court of law, that simply relies on the meaning of poorly-defined words, Commons is violating common expectations, setting up conditions for conflict and accusations of "lying." The user was faced with what seemed to him a completely preposterous situation, being naive about the "majority position" and how it might be applied. So he posed a hypothetical situation: "Have you heard of a self-timer?" This was then taken as if it were a clear lie, though he did not actually say he had used such.

The video showed the movement of the camera. The user, again, could have pressed Record, and then handed the camera to the bystander, later editing out the initial movements. Does it make a difference who actually presses the Record button? Above, we see a response apparently from the position that "The 'creator' is always the person who pushes the button"

The "majority position" seems to support that, but not if the full range of precedents are considered.

The upshot here is that law is not clear on this point, especially because "law" is not simply a set of words in statutes, it is a matter of actual practice. The interpretation being applied is outside of actual practice, not covered by it. Because there is no clear law, and because the purpose of Commons is to create and maintain a repository of files for free re-use, the goal of restrictions, then, is to prevent harm to re-users from possible damage from a re-use. I.e., suppose I publish a book, and use an image from Commons, and it later develops that the license was defective and the real owner of the copyright, someone else, shows up. I might suffer a heavy loss. Hence the Commons:Precautionary principle. However, it's also obvious that Commons hosts many files where a copyright claim is possible, and the Monkey selfie is a prominent case; it was a minority opinion in the recent deletion discussion that the precautionary principle required deleting the file. In that case, this is not just an abstract possibility, it's even probable. Whether or not the photographer will win is far less clear.

With bystander selfies, the likelihood is so close to zero that it can be neglected; yet all these deletions distract from the Commons mission, and not infrequently alienate users. The purpose of Commons process has been lost in an adherence to "principles" that are not fundamental.

I have also been asking for and seeking prior discussions, to see if this issue has ever been carefully considered by the Commons community. So far, nothing.

In the current discussion at Commons talk:Own work, this argument is raised:

Commons Precautionary Principle explicitly forbids us to consider that it is unlikely or impossible for the copyright owner to sue. We do not keep orphan works even when we are completely sure that the copyright holder no longer exists. Abd's line of reasoning violates one of our core policies.

First of all, I'm struck by the concept of site policies "forbidding" action. Does it do that? If so, what might be called Wiki Common Law is being disregarded. Policies are strong guidelines, but never forbid the community from deciding otherwise, and individuals may also decide otherwise and act otherwise; if this is done non-disruptively, it's not a problem. This is the meaning of w:WP:IAR, which was called Wikipedia Rule Number One. Is Commons different?

The argument is misleading. The error is in assuming that the bystander is the "copyright owner." The bystander owns nothing, and expects to own nothing, and could not claim anything. The bystander is not the copyright owner. Essentially, the user is assuming the conclusion.

/Deletion discussions

See the subpage for deletion discussions where bystander selfie may be relevant.

/Bystander selfies

This page will be used to draft a policy or guideline on bystander selfies, which will define them and establish how to handle them. The page is intended to be moved to Commons space when ready. Meanwhile, discussion is welcome. While the page lives in my user space, I will moderate that toward the goal of creating a document that is likely to enjoy consensus, or at least that will serve to clarify issues.

Summary: Bystander selfies are defined as a photo taken of the subject or including the subject, using the subject's camera, by a bystander, who hands the camera back with no reservation of rights. Such photos may be considered "own work" by the subject, for Commons purposes.

/Joint ownership

The subpage will examine issues and arguments around joint ownership

Summary: with a bystander selfie, the bystander might have a claim of joint ownership, but the bulk of the "creative activity" is by the subject, so the subject clearly has a strong claim to joint ownership as well. (And this is supported by case law.)

Further, with these photos, the bystander has, by action and conduct, abandoned any claim, and that is why no case law can be found. Someone has to make a claim to create a case, and, even though millions of bystander selfies are created every year, and many of these are published in some way (such as on a Facebook page), it simply hasn't happened, so far.