Wikilegal/Authorship and Copyright Ownership
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Who Owns the Copyright to the Photo If a Friend or Stranger Takes a Picture of You?
The mission of the Wikimedia Foundation is to empower and enable people around the world to collect and develop educational content under a free license or in the public domain and to disseminate it globally. As such, it is important to address issues such as authorship and copyright so users can feel free to contribute to our ever growing database of freely licensed content.
The answer to the question of who owns the copyright to the photo if you have a friend or stranger take a picture of you is dependent upon several factors. This post addresses the question under the laws of the United States. However, the different forms of authorship discussed here may be recognized in other countries as well, though the terminology and qualifying criteria may be different. 
Authorship and Copyright Ownership in the United States
First, when discussing copyright ownership and authorship, it is important not to use the two terms interchangeably. Authorship is non-transferable—whoever created the work or hired someone to create the work is considered the author. Copyright ownership means ownership over all of the benefits conferred upon an author under copyright law. These benefits include being able to decide how the work is licensed. The author is the first copyright owner and can choose to sell ownership of the copyright or transfer it to someone else.
Copyright protection vests immediately once an author creates an original work embodied in a tangible medium of expression, such as a manuscript or a photograph. Usually, sole ownership of the rights of copyright protection goes to the “author of the work.” An exception is when it is a “work made for hire.” A work made for hire, is a work created by an employee within the scope of that employee’s duties to his or her employer. Though the employee created the work, the employer is considered both the author and first copyright holder. In order for something to be considered a work made for hire, the employer and employee needs to have expressly agreed that the work will be considered a work made for hire in a written contract. In many instances, such clauses are usually included in an employee’s employment contract so a new contract does not have be drawn up each time a new work is created by the employee.
In some cases authorship and ownership may be shared or divided. In particular, a “joint work” is when two or more individuals (the “co-authors”) join efforts with the intention that their individual contributions merge together to create an indivisible whole work. Unless otherwise agreed upon in writing, the co-authors each hold equal undivided interests in the rights to the joint work, irrespective of the magnitude of each author's contribution.
A key factor when determining whether or not something is a joint work is whether or not all parties intended to create a joint work at the time each contribution was made. If so, then each party is a co-author. A co-author has a non-exclusive right to perform, reproduce, and license the joint work without the consent of the other co-authors, so long as he or she account to the others for any income received. However, the co-author cannot grant exclusive rights to a joint work unless the other co-authors agree, because one co-author cannot unilaterally extinguish the rights of the other co-authors. An example of a joint work would be a song that two musicians collaborated on together. As co-authors, each musician would have a right to perform that song whenever they wanted to, even without the other musician’s permission, so long as the other musician got a portion of whatever profit resulted from the song being performed.
The Example of the Third Party Photographer
In a typical situation where a person takes a picture of someone else, the person taking the picture is the author and copyright owner. However, what if you gave your camera to a friend or stranger and asked that person to take a picture of you? Who would then be considered the author and copyright owner? The main factors the courts look at when determining authorship is the degree of control the person exercised over the final product and the degree of originality employed.
Originality is a key factor because photographs may receive copyright protection "so far as they are representatives of original intellectual conceptions of the author.” “Some elements of originality in a photograph includes ‘posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any variant involved.”. This ties into the control factor, as without control you would not be able to give expression to your original intellectual conception. Thus, even though you might have taken the picture, this does not always mean that you are considered the author and copyright holder. Labor (taking the picture) by itself without control of the scene or originality is not enough to establish authorship.
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. This is because the person whose photograph is being taken had sole control over how the photo was taken – they chose the place, pose, etc., and likely the angle and lighting as well. As the sole author, the subject of the photo would be the sole copyright holder and could then license or display his work however he preferred. This scenario probably covers most situations where a friend or stranger is asked to take a picture of the subject without advance planning.
On the other side of the spectrum, if a person approached someone else and instructed him or her on where to stand and how to pose, without taking any input from the subject of the picture, most likely the photographer will be considered the author and sole copyright owner. This scenario is most akin to a photographer taking pictures of a model.
The middle ground situation would be where two people collaborate extensively to take a picture together. An example would be a model working together with a photographer to take a specific photo. Both of them would need to intend that the credit be shared equally between the two of them. Additionally, both of them would need to exert some control over the work and contribute to it in some way. If they do so, most likely the work will be considered a joint work and the two of them would be considered co-authors with an equal copyright to the work.
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.
- Freedom of panorama, a concept covering the ability of people to take photos or videos of buildings, sculptures, and other artwork located in a public place without infringing the copyright of the underlying work, is a separate issue that will not be addressed in this post.
- 17 U.S.C. § 102.
- The “rights” of copyright protection are traditionally referred to as a “bundle of sticks.” The reason for this term is that copyright protection secures to the author a set of exclusive rights that are distinct from one another, and which may be licensed out or transferred separately. Copyright protection therefore consists of a number of rights, not a singular “copyright.” This also explains why copyright notices will often say, “all rights reserved” and not “copyright reserved.”
- 17 U.S.C. § 201(a).
- 17 U.S.C. § 101. (“A ‘work made for hire’ is-- (1) a work prepared by an employee within the scope of his or her employment”).
- 17 U.S.C. § 101 (“A ‘work made for hire’ is-- (2) […]if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire").
- 17 U.S.C. § 101; See also Lindsay v. Wrecked and Abandoned Vessel R.M.S. TITANIC, 52 U.S.P.Q.2D 1609 (S.D.N.Y. 1999) (“To prove co-authorship status, it must be shown by the individual claiming co-authorship status that each of the putative co-authors (1) fully intended to be co-authors, and (2) made independently copyrightable contributions to the work.”).
- Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994) (“Thus, even a person whose contribution is relatively minor, if accorded joint authorship status, enjoys a significant benefit.”).
- 17 U.S.C. § 101 (a joint work is one “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”)(emphasis added); Lindsay v. Wrecked & Abandoned Vessel R.M.S. TITANIC, 52 U.S.P.Q.2D 1609 (S.D.N.Y. 1999) (“it must be shown by the individual claiming co-authorship status that each of the putative co-authors (1) fully intended to be co-authors”).
- See Herbert v. United States, 36 Fed. Cl. 299, 310 (Fed. Cl. 1996); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994); Meredith v. Smith, 145 F.2d 620, 621 (9th Cir.1944).
- See Herbert v. United States, 36 Fed. Cl. 299 at 313 (holding that one co-author’s grant of a royalty-free nonexclusive license to the government could not be invalidated by a co-author, because the former held authority to license the work in any manner desired).
- Compare Lindsay v. Wrecked and Abandoned Vessel R.M.S. TITANIC, 52 U.S.P.Q.2D 1609 (S.D.N.Y. 1999) (court ruled that where a plaintiff alleges that he exercised a high degree of control over a film, such that the final product duplicates his conceptions and visions of what the film should look like, the plaintiff may be said to be an author within the meaning of the copyright act), with Geshwind v. Garrick, 734 F.Supp. 644 (S.D.N.Y. 1990) (plaintiff not the author as he had only made minimal contributions to the final product and had few, if any, of his suggestions included in the final product).
- Burrow–Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
- Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992).
- Feist Publications, Inc. v. Rural Telephone Service Co.,499 U.S. 340, 359-360 (1991). ("[o]riginality, not 'sweat of the brow,' is the touchstone of copyright protection in directories and other fact-based works.").