User:Abd/Bystander photos/Joint ownership

Collaborating on Photographs May Create Ownership Issues, Photo Lawyer blog by Steven Filler.

Photographers who work collaboratively on photo shoots might be surprised to learn that even if they shoot the camera, they are not necessarily the sole copyright owner of the resulting images. A person may become a co-owner in the copyright in a photo -- not only by clicking the shutter -- but also by selecting and arranging the photo’s subject matter, making decisions about composition and camera angles, or by determining the lighting.

The laywer cites Brod v. General Publishing Group, Inc. The upshot, Filler's summary:

The Court found that the writer’s contributions -- his conception for the photos, his selection and location of the televisions and his decisions regarding composition -- were sufficiently original and expressive to constitute a copyrightable contribution. Even though the photographer was given copyright credit for the photos in the book, the Court found that the parties objectively intended to be co-authors of the work.

Notice: the intention is inferred from behavior. They worked together. The defendant, being sued for copyright infringement, set up what was to be photographed, arranging objects.

The Court found that the writer and the photographer were co-owners of the copyright and dismissed the complaint because co-owners cannot be sued for copyright infringement. Under the Copyright Act, copyright vests in more than one author if: 1) each person makes an independently copyrightable contribution to the joint work; and 2) the parties intend to be co-authors where their contributions are merged into an inseparable or interdependent part of a unitary whole. The Court found that the writer’s contributions -- his conception for the photos, his selection and location of the televisions and his decisions regarding composition -- were sufficiently original and expressive to constitute a copyrightable contribution.

So, to our topic here, bystander selfies. There is no doubt that the subject has the idea for the photo, and poses for it, or does whatever else is necessary to create a photographable situation. If the subject used a self-timer to create the same photo, there is no reasonable doubt that the photo would be copyrightable by the subject, so the subject's contribution to a bystander selfie is copyrightable. So it is clear that in a normal bystander selfie, the subject is at least a co-owner. Whether or not the photographer is also a co-owner would depend on specific conditions.

The circumstances of a bystander selfie include that the camera is provided by the subject, and the photographer simply points and aims the camera. An expert photographer might do more than that. However, "expert photographer" or even "professional photographer" is not relevant here. The conduct of the bystander establishes no intention to claim copyright. At most the bystander, then, might be able to claim co-ownership, but may not deny the ownership of the subject.

Consequences of joint ownership

corporate.findlaw.com

When the copyright in a work is jointly owned, each joint owner can use or license the work in the United States without the consent of the other owner, provided that the use does not destroy the value of the work and the parties do not have an agreement requiring the consent of each owner for use or licensing. A joint owner who licenses a work must share any royalties he or she receives with the other owners.

Many foreign countries (Germany and France, for example) require that all joint owners consent to the grant of a license. Generally, joint ownership is not recommended because of the complications it adds to licensing worldwide rights. In addition, it is unclear what effect the filing of bankruptcy by one joint owner would have on co-owners. - See more at: http://corporate.findlaw.com/intellectual-property/ownership-of-copyrights.html#sthash.3odWLCGd.wMKaTb5t.dpuf

What is the "value" of a bystander selfie? The bystander has, by behavior, surrendered all interest in the photo. With Brod v. General Publishing Group, Inc, there was no such surrender, and the defendant actually credited plaintiff Brod with copyright. Brod's claim was far stronger than that of a bystander, strong enough that the court refused to award expenses to the defendant, even though ruling for the defendant.

A bystander who brought suit for copyright infringement against a subject would very likely suffer an expenses award. The entire conduct of the parties during the "photo shoot" would be contrary to an intention to create separate ownership by the bystander or joint ownership.

If Commons adopts the proposed Bystander selfie guideline or policy, Commons practice will become uniform on this point, and consistent with case law and expert legal opinion. The idea that the one who snaps the picture is always the copyright owner is simply false. Such a person might have a claim to joint ownership against the subject, but only if that claim is timely asserted. Otherwise they may be, as one uploader called the bystander, "a human tripod," recording a creative work by the subject, the subject's own appearance or activity.

In some deletion discussions, the file was a video of the subject doing a particular exercise. The "creative effort" of the bystander was limited to holding the camera such that it framed the subject's activity. The subject's creative effort was complex, requiring effort and intention, and creating a video with educational value. Yet because of the idea that "the one who takes the picture always owns the copyright,' the videos, in actual use on wikis, were deleted.

That idea is simply false, based on a misreading of copyright law.

So: with a bystander selfie, by precedent as to creative contribution (a contribution sufficient to create a copyrightable work if a self-timer is used), the subject does have author rights. The bystander might also have such rights, but if they are not asserted in any tangible way, such that the subject would be on notice, that possible right has been abandoned, and, further, even if claimed timely, might be denied or mooted.

I.e., suppose that the bystander says, before handing back the camera, "By the way, having taken this photo, I own the copyright." Imagine responses:

"Hand me my camera back, I will delete the image." And the subject asks someone else.

"Well, you could. Here, please sign this release."

"Okay, fine. Give me your contact information and I'll share any royalties with you equally. However, I'm taking this for use on my Wikipedia user page, and to do that, I must release the rights under a Creative Commons license. Do you consent to that? If so, please sign this release. If not, I'll delete the image and find someone else to take the photo. Thanks anyway."

The most likely response from the bystander: "Never mind! I was joking!"

There are many millions of bystander selfies taken every year, with no conversation about "rights." Yet there is no case law on point. There are cases like Brod v. General Publishing Group, Inc because a professional was involved, but the professional did not ensure that agreements were clear (nor did the publisher).

There is no actual unclarity with bystander selfies. There is only a theoretical unclarity caused by a naive assumption that the bystander is the "author" and "copyright owner" just because they held the camera and pressed the button. Because there is no unclarity, and because, then, conflicts over this do not arise, there is no specific case law, that I've yet found, in spite of searching for it, and asking Commons users for pointers.