DeGeneres “selfie” is a golden opportunity to improve IP education

Before the Oscars telecast was even over, the photo had been retweeted a record-breaking 2 million times, crashing Twitter in the process. The Twitterverse and mainstream media erupted with questions. Were the rights to the “selfie” hers to license, given that it was actually taken by actor Bradley Cooper? Why did AP need a licence to share the photo when millions of people had done so without one?

Commentators quickly offered answers, with varying degrees of legal merit. This frustrated some IP lawyers including Paul Fakler of Arent Fox, who wrote a blog entry on “Why Copyright Analysis Should Be Left to Copyright Lawyers”.

“There are thousands of interesting copyright issues, and trust me, ‘who owns the copyright in the Oscar selfie?’ is not one of them,” he wrote. “I mean, who really cares? Is it going to matter, ever? But there has been so much awful ‘analysis’ by non-copyright lawyers holding themselves out as copyright experts that I cannot help myself.”

Fakler is not the only attorney to feel frustrated by the abundant misinformation. I had an interesting conversation with a couple of Managing IP’s followers on Twitter on the subject (see below.)

I can understand the frustration copyright experts must feel when nonsensical legal theories are presented as fact but I disagree with Fakler’s position. Copyright law applies to all of us, not just copyright lawyers. This is especially true in the digital age, when the move towards user-generated content means most of us are regularly sharing content. Every day, those of us who are not IP lawyers have to do our best to analyse copyright law if we want to avoid infringing. Public discussion is a fun and accessible tool for improving our understanding of IP rights.

To be fair, it’s not clear if by “non-copyright lawyers” Fakler means anyone who is not a copyright lawyer or any lawyer whose expertise is in areas other than copyright. He doesn’t link to the opinions he criticises in his article, perhaps out of a desire not to embarrass the speakers. To some extent, I agree that attorneys who are not familiar with copyright law might exercise a little more restraint when asked by the press to comment on copyright issues. Many readers who have not had a legal education do not realise that attorneys tend to specialise and will consider any lawyer an authority on all aspects of the law.

But regardless of the source, the best cure for misinformation is to correct it, not to silence the speaker. A respectful explanation tends to be received far better than deriding people for their lack of knowledge or lowbrow interests.

Perhaps internet users in general should refrain from expressing their (frequently flawed) analysis of all sorts of issues but realistically this is not going to happen. It’s not even necessarily desirable. Those commentators would still hold their incorrect beliefs and will presumably act in accordance with them, infringing in blissful ignorance.

At industry events, such as those hosted by AIPLA and INTA, lawyers often talk with dismay about the misconceptions the public holds about IP and the negative press the industry is receiving. An event that inspires public discussion about IP, such as the DeGeneres “selfie”, is a golden opportunity to educate the public and reduce unintentional infringement.

Who holds the copyright in the DeGeneres “selfie” might not be the most interesting issue from an IP lawyer’s perspective but it’s obvious why it has received so much media attention. While I’m no fan of our current culture of celebrity hero-worship, I recognise that a large segment of the population is fascinated by famous actors and red carpet events. The mainstream press quite sensibly prioritises stories it thinks its target audience will be interested in over issues copyright lawyers might find intellectually stimulating.

Any journalist worth their weight in salt will correct a factual error if made aware of it, so if copyright attorneys see inaccuracies it is worth contacting the reporter. Some may also be open to doing a follow-up article, in which case lawyers could reap the dual benefits of improving the public’s understanding of IP and generating free publicity for themselves and their firms.

The recent decision by Getty Images to make 35 million photos available to internet users (excluding media outlets) illustrates how the internet has challenged our ideas about copyright and publishing. The law is still catching up to the new reality.

In the meantime, the internet has made everyone a publisher. Whether we like it or not, fact-checking before dissemination is more lax than it was in the days of print. On the plus side, it has never been easier or faster to correct misinformation.