One of the most memorable moments of the 2014 Academy Awards was Ellen DeGeneres’s famous selfie taken with Bradley Cooper, Meryl Streep, and other famous friends. This so-called “Oscar Selfie” has been estimated to be worth millions of advertising dollars for the event’s sponsor, Samsung. DeGeneres’ use of selfies as a promotional tool was novel method of documenting Hollywood’s greatest night which proved an undeniable successful. However, the fact that Bradley Cooper actually captured the Oscar Selfie raises a number of important questions about how user-generated content distributed through social media fits into existing intellectual property law. At the heart of this investigation is the question of authorship, specifically who has the right to exploit a work posted to social media, and how the circumstances under which the work was created may affect the rights attached to it. I used the Oscar Selfie as an example in order to explore issues in rights management and the potential outcome of controversies arising out of content shared over social media with ambiguous authorship. Examining these issues through the lens of a series of hypothetical suits, this article concludes that existing copyright laws provide a finding of co-authorship, implied-license, and the applicability of fair use defenses to permit many forms of expression distributed through social media. Legal practitioners need to understand how intellectual property and creative expression are used in this arena and how the law is best applied if they are to keep pace with the wellspring of creativity and controversy that is social media. In general, it is better to respect the intentions of the parties when the distributed work was created and to ensure that the fluid exchange of ideas over social media is maintained. Superimposing restrictions which may favor one party over the other when there is not a clear case of infringement is largely incompatible with the common use social media platforms and contradicts the bulk of existing intellectual property law.
Michael Reed, Who Owns Ellen's Oscar Selfie? Deciphering Rights of Attribution Concerning User Generated Content on Social Media, 14 J. Marshall Rev. Intell. Prop. L. 564 (2015)