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As published by SBS News.

Ellen DeGeneres was responsible for a record-breaking selfie taken at the Oscars, and it was shared via Twitter by millions. But what exactly is a selfie, what’s with all the hype, and what are the legal pitfalls to be wary of?

They’re found in our classrooms, workplaces and homes – and the internet is awash with them. So ubiquitious is the modern day phenomenon of the selfie, in fact, that it’s even found its way into the dictionary.

According to the Oxford Dictionary, a selfie is a photograph that one has taken of oneself, typically one taken with a smartphone or webcam and uploaded to a social media website. So prevelant and influential is the selfie that it inspired Oxford Dictionary to select it as its 2013 Word of the Year.

But while the Ellen selfie gains worldwide attention, United States lawyers, legal scholars, and pundits alike, are in the background, keenly debating actual ownership of the famed selfie. Debate has been fuelled by the circumstances surrounding the selfie, in particular, that Ellen coordinated the photograph; Bradley Cooper took the photograph (apparently, his arms are longer); and that the photograph was taken on a Samsung device, most likely owned and provided by Samsung.

Some suggest that Ellen owns the selfie as she coordinated it. Others insist that Cooper owns it, as he was the photographer. Perhaps those who claim that it is owned by Samsung as part of an advertising deal with the Academy of Motion Picture Arts and Sciences, the organisation that put on the show, have good argument. But in any case, uncertainty surrounds legal ownership of the photograph.

Now let’s consider ownership of a selfie taken in Australia. The logical starting point is to determine the first owner of copyright in a photograph. That will be the author of the original work. That is, the person who takes the photograph. However, numerous exceptions may apply, among them being:

  • Photographs taken by an employee – An employer will own copyright in a photograph taken by an employee pursuant to the terms of a contract, unless that employee is a newspaper or magazine employee (in which case, different rules may apply); and
  • Commissioned work – When a photograph is commissioned for valuable consideration (payment of some kind), the person commissioning the photograph will be the owner of copyright. This is provided that the photograph was taken for private and domestic purposes, such as, a family portrait (this exception may be modified by agreement).

Determining ownership of copyright in a selfie may be straightforward but does any of the following influence ownership?

Ownership of camera

For the purpose of establishing ownership of copyright in a photograph, it does not matter who owns the device that was used to take the selfie.

The idea for the photograph

Copyright protects the expression of an idea, but not an idea itself. Therefore, the person who had the idea of the selfie will have no claim to ownership of copyright in it.

Joint ownership

While joint authorship of a work is commonplace (for example, two people co-writing a book), joint-authorship of a selfie is unlikely. It will not be enough for a person to claim joint authorship (and therefore, joint ownership) on the basis that they contributed to the idea of the selfie.

So back to the original position…the person who takes a selfie will be the first owner of copyright in it (unless an exception applies). Of course, ownership of copyright may be assigned (transferred) to a subsequent owner, but under the Copyright Act, it must be in writing. No exceptions.

Final words

In all their complexity, the provisions of the Copyright Act can be confidently used to determine ownership of copyright in photographs. There is little doubt that, if taken in Australia, Bradley Cooper would own copyright in the selfie that has taken the world by storm. It follows that any competing claims would be dismissed with relative ease.

But what about ownership of that family snap, taken on holiday by a friendly local, who then disappeared into the sunset?