That sox: Samsung got into water for using David Ortiz of Boston Red Sox's selfie with the Prez. Photo: Getty
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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.

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?

Ian Steadman is a staff science and technology writer at the New Statesman. He is on Twitter as @iansteadman.

This article first appeared in the 09 April 2014 issue of the New Statesman, Anxiety nation

YouTube
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"It's just a prank, bro": inside YouTube’s most twisted genre

Despite endless headlines and media scrutiny, catchphrases such as "it was a social experiment" and "block the haters" have allowed YouTube's dangerous pranking culture to continue unregulated. 

A year and five months after the worst prank video ever was uploaded to the internet, its crown has been usurped. In November 2015, YouTuber Sam Pepper made headlines after he filmed a video entitled “KILLING BEST FRIEND PRANK”. In the video, Pepper kidnaps a man before forcing him to watch his friend be “murdered” by a masked figure. Rocking on the chair he has been tied to, the victim sobs and shouts: “We’re just kids”.

Last week, an actual child – aged nine – was victim to a similarly distressing “prank”. Michael and Heather Martin, of the YouTube channel DaddyOFive, poured disappearing ink on to their son Cody’s carpet before – in Heather’s words – “flipping out” on the child.

“What the fuck did you do,” yells Heather to summon Cody to his room. “I swear to God I didn’t do that,” screams and cries Cody as his parents verbally berate him. His face goes red; he falls to his knees.

You won’t find either of these videos on either of their creators’ channels today. After considerable backlash, Pepper deleted his video and DaddyOFive have now made all of their videos (bar one) private. The Martins have faced international scrutiny after being called out by prominent YouTuber Philip DeFranco, who collated a video of clips in which Cody is “pranked” by his family. In one, Cody appears to be pushed face-first into a bookcase by his father. In another, a visibly distressed Cody sobs while his father says: “It’s just a prank bro.”

These five words have been used to justify some of the most heinous pranks in YouTube history. Sam Pepper famously called a video in which he pinched the bottoms of unsuspecting women, a “social experiment”. Usually, though, creators’ excuses follow a pattern. “It was just a prank,” they say. Then, if the heat doesn't subside: “Actually, it was fake.”

Three months after his “KILLING BEST FRIEND” prank, Pepper claimed the video – and all of his other prank videos – were staged. In a video entitled “Family Destroyed Over False Aquisations [sic]” the Martins have now also claimed that their videos are scripted. “We act them out,” says Michael. It seems many on the internet remain sceptical. The Child Protection Services website for Maryland – where the Martins live – has crashed after Redditors encouraged one another to report the family. If the Martins’ videos are indeed staged, Cody is one of the shining child actors of our time.

Though the Martins might yet face severe consequences for their pranks, it wouldn’t be surprising if they didn’t.  The “Just a prank”/“No it’s fake” cycle means that despite multiple headline-grabbing backlashes, YouTube pranking culture continues to thrive. Boyfriends pretend to throw their girlfriend’s cats out windows; fathers pretend to mothers that their sons have died. YouTubers deliberately step on strangers' feet in order to provoke fights. Sometimes, yes, pranksters are arrested for faking robberies, but in the meantime their subscribers continue to grow in their millions.

At present, there is no regulatory body that examines YouTube. Pranksters who break the law are arrested, but children whose daily lives are filmed for the site are not protected by the same regulations that safeguard child actors from being overworked or exploited. Though the communications authority Ofcom has guidelines about wind-up calls and consent, it does not regulate YouTube. The BBC were famously fined £150,000 by the body after Russell Brand and Jonathon Ross prank called Andrew Sachs, yet internet pranks remain out of its jurisdiction.

Though YouTube removes videos that breach its “Community Guidelines”, it seems illogical that we trust the service to police itself. Since the invention of the radio, we have assumed that independent bodies are needed to scrutinise the media – so why you should the largest video-sharing platform on the planet be exempt? No one is truly looking out for either the pranking victims or the children of YouTube. God forbid, like Cody, if you are both.

It is also arguable that YouTube pranks need more regulation than those broadcast on TV. Britain’s favourite pranking shows revolve around humiliating comedians themselves – Trigger Happy TV, Balls of Steel, Jackass – or are very soft (think a man pretending to be both a mime and a policeman) in nature. When someone is outright humiliated on TV, it’s because they are seen to be “fair game”, such as in Comedy Central’s Fameless Prankers, where people desperate to be famous are forced into increasingly humiliating situations. On YouTube, there are no consent forms or waivers to ensure filming remains ethical, and YouTube pranksters often target more vulnerable people.

“There’s an element of power here with the parents and it seems this is very top-down,” says Jonathan Wynn, a sociology professor at the University of Massachusetts who has written on pranks in the past. Wynn explains that traditionally pranks mock status and hierarchy, such as when court jesters taunted kings. When pranks come from the top down, Wynn says they allow a group to bond emotionally – arguably something the Martins are attempting as a family. Nonetheless, Wynn notes this would work better if the children also pranked their parents equally. “In this case the status differential is quite high, when you have children and parents.”

Traditionally, the mainstream media has had little room for this type of content. In 2012, two radio DJs attempted to prank the Duchess of Cambridge Kate Middleton by calling the hospital she was staying at, but instead tricked two nurses. When one of these nurses, Jacintha Saldanha, died by suicide days later, the episode seemed the ultimate illustration of the recklessness of pranks that “punch down”.

Conversely, status differentials are a large part of YouTube prank culture. Rather than attacking people in power, YouTube pranks are often played by those in power (the YouTube famous) on those who have lower social status. Frequently, boyfriends prank girlfriends, for example, and since 2014, white pranksters have filmed “in the hood” pranks provoking young black men. In “The N Word Prank!!” famous internet prankster Roman Atwood goes around saying “What’s up my neighbour” to people of colour, knowing that it will be misheard as a racial slur. In the context of this pranking culture, a parent pranking a child to the point of tears seems almost inevitable.

Perhaps, then, it is easy to understand why Michael and Heather Martin “prank” their children – it is harder to understand why anyone is watching. The DaddyOFive channel has over 750,000 subscribers, with over 7,000 of these subscribing after Philip DeFranco’s video accused the family of “abusing” their children. In order to defend themselves, the Martins initially employed another YouTube rhetoric, on top of “just a prank bro”. In a since deleted video, they invited their fans to “block the haters”.

This phrase is ingrained in online culture, and has allowed internet celebrities to dismiss criticism for years. By painting anyone who is critical as “jealous” or a “hater”, YouTubers can ensure their fans ignore their words and therefore stay loyal. In a video response to Philip DeFranco, the Martins riffed off a popular meme and placed spoons over their eyes to symbolise this mentality, and now fans as young as 12 are copying this action to show their support. When I search the hashtag used by the family’s supporters to see if anyone might be willing to explain why they still love the channel, I am faced with the reality that most of DaddyOFive’s fans are children. Though YouTube’s minimum sign-up age is 13, there is nothing really stopping children from watching – and normalising – harmful content, particularly when it is disguised as a “prank”.

In this context, it doesn’t matter in the slightest whether a prank is faked. Sam Pepper might have asked his friend's permission before he fake-kidnapped him, and perhaps Michael Martin was only pretending when he pushed his son into a bookcase. Neither of these facts will prevent children – 19 percent of whom have a desire to be famous – from copying these actions in order to promote their own YouTube channels. Even if a YouTuber is punished for a dangerous pranking video, there are thousands of other pranksters ready and willing to take their place. 

It remains to be seen whether the Martins will continue with their YouTube channel. At the end of their now infamous invisible ink prank, Michael asks Cody to “do the outro” – the concluding section of a YouTube video. Wiping his nose and still red in the face, Cody rattles off his script at alarming speed.“Thank you guys for watching this video if you like this video and want to see more videos like this one leave a comment down the section below and don’t forget to follow us on Twitter, Instagram, Facebook, Snapchat… and don’t forget to… Like and Subscribe.” 

Since the backlash, Michael has added a new line into the “About” section of the DaddyOFive YouTube channel. After reiterating that the videos are fake, he writes: “no child was harmed in the making of our videos”. 

Amelia Tait is a technology and digital culture writer at the New Statesman.

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