Who actually owns your selfies?

Barack Obama is the president of the United States of America and neither he (nor his image) is supposed to be used to endorse a product.

That sox: Samsung got into water for using David Ortiz of Boston Red Sox's selfie with the Prez. Photo: Getty
That sox: Samsung got into water for using David Ortiz of Boston Red Sox's selfie with the Prez. Photo: Getty
Samsung’s PR team loves it when celebrities take selfies using the company’s newest smartphones. So when the Boston Red Sox visited the White House on 1 April and the player David Ortiz snapped a cheeky selfie with Barack Obama, Samsung’s US team quickly retweeted the picture. Now that decision could land Samsung with a lawsuit.

Why? Because Barack Obama is the president of the United States of America and neither he (nor his image) is supposed to be used to endorse a product. The White House press secretary, Jay Carney, denied that there was any discussion of a ban on all selfies with the president. But US law gives everyone the right to object to being featured in an advertising campaign without permission.

The problem is that these laws were drawn up at a time when the line between personal photographs and adverts was relatively clear and defined. The federal Lanham Act of 1946 gives consumers a way to sue companies for false advertising, or to protest against unwittingly being used in an advertising campaign. The White House lawyers could argue that Obama wasn’t knowingly endorsing a Samsung phone when he posed for the selfie.

Ortiz says that he didn’t intend for his snap to become a viral marketing campaign, but when the Samsung PR team hit “Retweet” it may also have created grounds for a case against the Korean company.

Samsung could defend itself by pointing out that the selfie doesn’t qualify as an advert – you can’t see the brand of the phone taking the picture, after all – and that in posing for a selfie, you give your consent for your image to be shared in all kinds of unexpected ways. We just don’t have any legal precedents for such a case.

The “Ellen selfie” taken at the 2014 Oscars – that one of actors from the Academy Awards in March – was the nadir of the media’s obsession with a pretty unremarkable fad, but the most interesting aspect of the picture was the one that was most ignored: who owned it? You’d think that Ellen DeGeneres owned it, as it was taken with her phone, but Bradley Cooper pressed the shutter button.

It’s a well-established precedent that it’s the person who takes the picture who owns the rights to it but it was DeGeneres who gave Associated Press permission to republish the shot. She may not have had the right to do so.

Alternatively, perhaps she did have the right, in the way that an artist retains authorship rights over a piece of art even if most of the manual labour that went into making it came from a studio assistant. Such arrangements usually need paperwork to be legally formalised, however.

In this case, Samsung also complicated matters, as it has a big advertising deal with the Academy. A representative for Samsung responded after the selfie went viral to deny that DeGeneres was paid to use a Samsung Galaxy Note to take the picture – although the company was “delighted to see Ellen organically incorporate the device into the selfie moment that had everyone talking” – as if those were words a human being would ever utter.

Again, as in so many issues to do with Twitter, from death threats to online plagiarism, the legal system finds itself one step behind in the internet age. But if this episode leads
to the end of news stories about selfies, would that be such a bad thing?