Selfie Legal Issues

Selfies are still the rage these days, particularly with celebrities. But what could happen if a selfie includes more than just one person? In other words, what are the legal implications of when a selfie is not just a selfie? Turns out, selfie legal issues are numerous.

Once an informal word, “selfie” was included in the Oxford English Dictionary in November 2013 and is defined as “a photograph that one has taken of oneself, typically one taken with a smartphone or webcam and uploaded to a social media website.”

This article discusses a number of legal issues with photographs, and selfies in particular, and provides guidance to online publishers of content and media to avoid potential liability and other selfie legal issues.

Selfies and Copyrights

Copyrights is one selfie legal issue.  Copyrights vest in the author when the creative expression of the idea is fixed in a tangible medium. That’s a fancy, legal way of say when the creative work begins to exist physically. For a picture, typically the photographer is the author and copyright owner. Inclusion of people, particularly celebrities, brands, and famous places can complicate the legal landscape.

For a true Selfie, the analysis should be simple: both the author and the person featured in the photograph are the same person making copyright ownership and other legal issues simple. But what happens if the selfie includes other people beyond the photographer? As we will see, that can complicate things greatly.

Selfies and Rights of Publicity/Likeness

Rights of publicity and likeness seek to regulate the use of one person’s image, including a photograph, by a third party. In particular, these rights affect the ability of the third party to profit from a photograph and potentially display it publicly. Selfies can trigger these issues in two distinct ways. The first is where the photographer and selfie participant is not a celebrity but captures the image of a celebrity, with or without permission in the selfie. The second is where a celebrity includes third parties in his/her selfie images and publishes them.

Ellen DeGeneres’s impromptu group selfie at 2014 Oscars is one of the more recent example of where the legal issues surrounding a selfie are complicated. The selfie was apparently Ellen’s idea, but Bradley Cooper actually snapped the photo. As discussed above, that likely makes him the copyright owner or at least a co-owner. However, the photograph contained the image of numerous celebrities (Jennifer Lawrence, Julia Roberts, Brad Pitt, Meryl Streep, Kevin Spacey) triggers a potential significant right of publicity issue. Also, there is an issue of who had the right to profit from the photograph. Steve Kramer in his entertainment law blog post addresses a number of these issues and provides a good analysis of the Ellen DeGeneres situation.

Another potential issue with a selfie is the possibility of it being an imposter image used for online or social media impersonation. Such malicious actions trigger a number of legal issues and sometimes present difficulty in stopping. The victim typically needs legal help to stop the impersonation/false identity through an anti-impersonation process. Revenge porn is another species of this problem.

Selfies Rights of Privacy

On the opposite end of publicity is the right of privacy. The laws vary by state, but basically these laws aim to protect against certain public exposure of information and can include photographs of private moments. Therefore, a selfie that includes another person governed by a right of privacy could pose a legal issue and possibly violate a right of privacy.

In an interesting twist on privacy, the State of New Hampshire has banned so called “ballot selfies” to defend against voter bribery and coercion. A federal lawsuit has been filed to challenge the law. Politicians in the Philippines even introduced a bill in 2014 called the “Protection Against Personal Intrusion Act” to protect the privacy of people appearing in other’s photographs. A law like that could have far reaching implications for group photos, not just selfies.

4 Steps to Consider for Online Media and Content Publishers if Publishing Selfies

Given all these selfie legal issues, what should publishers of online media and content do? Here are four practical steps to consider taking to safeguard against copyright infringement and other claims and legal issues with Selfies:

1. First, obtaining a license to use the image from the rights’ holder(s) is the first step. Beyond privacy, the rights to profit and exploit the image are essential to be addressed. All of these can be handled in a license or release agreement.

2. If warranted, a publisher may want to obtain a set of representations and warranties from the party providing the media or content as well as an intellectual property indemnification clause to protect against future third-party claims. Representations, warranties, and indemnity are only as good as the economic means of the party providing them, so they may not provide much protection.

3. Having a good take down process for copyright and other claims made by third parties may also limit liability. A DMCA compliance process is a good start in that direction.

4. A robust terms of use agreement, privacy policy, and other website agreements can help address these rights on the front end, clarify ownership, and possibly even provide the required license. However, as Instagram found out, changes to terms of use agreements can lead to a lawsuit by users.

Conclusion

As you can see, selfie legal issues are a thorny set.  Best to keep those selfies just of yourself—unless you are in New Hampshire holding a ballot.

Related article: Monkey Selfie Legal Battle Continues

For more information on this topic, see our Internet & eCommerce and Social Media Law service pages.