Commons talk:Own work/Bystander selfie

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Background

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This draft guideline subpage was created based on study of the bystander selfie issue, at User:Abd/Bystander photos, which links to sources and Commons discussions, and extensive recent discussion at Commons talk:Own work.

Specific basis for this page:

If someone wanted to take a picture of himself at a particular time and place, posed in a certain manner, but did not have a timer or tripod, and asked someone else to take the photo for him, most likely the person asking someone else to take his photo would be considered the sole author. This is because the person whose photograph is being taken had sole control over how the photo was taken – they chose the place, pose, etc., and likely the angle and lighting as well. As the sole author, the subject of the photo would be the sole copyright holder and could then license or display his work however he preferred. This scenario probably covers most situations where a friend or stranger is asked to take a picture of the subject without advance planning.
In discussion of this, a user pointed to "most likely" and "probably," as if this were a weakness. In fact, there is no case law on the exact point, and it is "likely" that there won't be, because a case would have to be created by action of the bystander, and (1) people just don't do that, and (2) it is "most likely" that the bystander would lose, incurring legal expenses, and gaining nothing but opprobrium. So the lawyer was merely being lawyerly.
  • And, then, there are Commons deletion discussions where the fact that the uploader was in the photo was used to claim copyright violation. Where there was wide participation, Keep decisions have been common. Delete decisions also exist, but generally seem to have involved complications or lower participation.
  • Generally missing from prior discussions was the possibility of co-ownership. It is clear in a bystander selfie that the creative intention is on the part of the subject, not the bystander. The subject then acts or poses as desired for the photo or video. There is no doubt that if the subject used a tripod and camera with a self-timer, for the exact same photo, the subject would be creating a copyrightable work, for Commons purposes, and would be an author. Therefore if another participates, the subject is at least a co-author, and thus has the right to release the photo or video, which is all that Commons needs. We do not need to decide if there are other possible co-authors. There is case law on this, where a photographer brought suit for copyright infringement against a writer who had commissioned the photographer to photograph scenes that the writer actively created. Later, a book was published and the photographer sued for copyright infringement. The court ruled that the writer had substantially contributed to the creation of the works and was therefore a co-author and could therefore give permission for publication. The contribution of the photographer was not denied. See Brod v. General Publishing Group, Inc.
  • In Brod v. General Publishing, the photographer was a professional and used his own equipment and film. The norm in a bystander selfie is that the bystander does not use his or her own equipment, and does not retain any physical possession of the latent image, and could not exploit it or publish it. This provides additional strength to the argument of sole ownership by the subject. Yes, the bystander may have contributed creative effort, however; absent specific agreement, that possible claim was, by the circumstances, abandoned. The possibility of co-authorship by the bystander is the weaker claim.

The purpose of this proposed guideline is to resolve the issue, to avoid future disruption. "Bystander selfie" is a reasonably clear category, easily defined, and bystander selfies are very common. --Abd (talk) 18:14, 18 March 2015 (UTC)[reply]

  • @Abd: Let me ask a thought question here. I trust that you would agree that the subject's presence in the photo makes no difference from a copyright standpoint. If a photo exists depicting me, I may have personality rights, etc, depending on the local laws, but I have no greater copyright just because I am the subject of the photo. So, since I'm sure we would agree on that, here's my question. Suppose that a friend and I are walking down the street and I say to my friend, "ooh, look at that pretty flower and how the sun is shining on it - you should get a picture of it". He or she takes the photo. Am I the copyright holder (or one of the copyright holders)? My creative input into the process is the same as my creative input into the "bystander selfie", that is, I selected the subject and the lighting. My problem with this notion is that it seems that we are coming up with an answer we want (which, let's face it, all of us want this answer) and then backfitting a legal theory to make it work. The WMF legal opinion all but says that that's exactly what they did. I'm not hugely thrilled with accepting photos under this condition because I don't think, in most cases, that we even need to. If the "bystander selfie" was taken prior to the 1976 Copyright Law going into effect, then it's moot anyway. If the subject of the photo is the one submitting it (which is kinda the point, usually), then we are in communication with them and we can get them to submit something with a more ironclad license. So it's only really even an issue when, say, the subject is recently deceased and a family member has a photo that was taken by some other unknown family member at a family gathering. But the problem with applying the bystander selfie theory there (even if the theory is otherwise legally correct) is that nobody who was there at the event can attest to the circumstances. Bob is dead. I'm Bob's heir. Some unknown person photographed Bob. How do I know whether Bob asked to be photographed or whether the photographer walked up to Bob and said, "hey I'm gonna take a picture of you"? The latter is not a bystander selfie. --UserB (talk) 17:10, 16 April 2015 (UTC)[reply]
  • Thanks for commenting and questioning.
  • Yes, the subject's presence makes little difference, in itself. That's quite clear.
  • As to the flower photo, copyright law is clear, contributing an idea is not enough, it is not a copyrightable contribution. The friend owns the copyright, absent some agreement. Actual arrangement of subject, active engagement in photography, that can create authorship, see Brod v. General Publishing Group, Inc
  • It is not denied that a bystander might contribute creatively.
  • A real court will consider many factors, not just one or two. Among other things, a court will consider what can be distinguished about intention. The custody of the image in a bystander selfie is a very strong indicator of intention, and my research uncovered that professional photographers wrote they would never claim copyright as a bystander. They take the photo, often use substantial skill, and walk away. Not only would that be almost impossible to establish in court, but it would be extraordinarily rude. (And that does mean something in court, a court will consider "reasonable expectations.")
  • Yes, prior to 1976, as you have noted elsewhere, the matter would be completely clear. That was then, this is now, and there is no change in this particular case. What the shift in law did is to establish possible co-ownership for the bystander, under some circumstances. Before, no, that was completely and totally dead. I think it's still dead, and no cases have been found.
  • We have seen plenty of bystander selfie submissions here where the subject submitted an image of self and was strongly challenged to produce photographer permission. There is one case where, after much debate, the photographer, a prominent Wikipedian, ended up saying that he'd used a self-timer, which seemed is highly unlikely from the photo itself and the circumstances. (I could practically see the nominator muttering to himself, but... but ...) But who was going to challenge him?

The bystander, very likely his friend (if he didn't use a self-timer)?

In another case, recently, a subject wanted to make an exercise video, and had found, from substantial experience, that bystanders often did not properly press Record, so he then had to repeat the work. So he used a self-timer. When he mentioned this, he was called a liar, because the video showed camera movement. Sure, it showed movement, he used a "human tripod." When he first told me about the self-timer, I thought he was, ah, fudging, for he had first stated it as "Haven't you ever heard of a self-timer?" He did not actually say, "I used a self-timer.") He was upset and sarcastic. I thought a self-timer with a video was ridiculous, until I asked him directly, he gave me details, and I realized it was totally rational, and, yes, more than once I have thought I was taking a video, only to discover that I hadn't actually started recording. There went my daughter's first violin recital.

  • The issue of "possible bystander selfie" is not the same as a clear claim of bystander selfie from the subject. That we can invent a scenario where we don't know doesn't change the bystander selfie case -- where we do have plausible and verifiable testimony from the subject.
  • You are correct, the photographer taking a photo of Bob as described is not a bystander selfie. If there is no evidence, there is no basis for making a "bystander selfie" claim. This would be, perhaps, about a print found in Bob's effects with no indication of source. I've seen this case on Commons, recently.
  • However, suppose that there is a collection of photos found on Bob's hard drive, many photos taken by Bob, obviously, with his own camera, transferred to the computer as such as a batch, numbered by the camera, etc. Among them is a photo of Bob. This is presumptively a selfie and possibly a bystander selfie. Bob's heirs own copyright and may release it.
  • We can make up borderline cases, but the vast majority of bystander selfies are uncomplicated.
  • I wish it were true that this were only an issue with deceased subjects. Were that so, I would never have brought this up. --Abd (talk) 19:09, 16 April 2015 (UTC)[reply]
    "As to the flower photo, copyright law is clear, contributing an idea is not enough, it is not a copyrightable contribution." What is there that the non-photographer contributes in the bystander selfie that he or she did not contribute in the flower photo? "This flower looks good in this light with this background. Please take a picture of it." "I look good in this light with this background. Please take a picture of me." --UserB (talk) 02:14, 17 April 2015 (UTC)[reply]
Thanks, UserB, for asking such excellent questions.
Repeating a basic argument, the subject contribution is copyrightable. I think we can agree that a self-timer and tripod make no creative contribution; rather the one who sets them up might. We will, I believe, also agree that a basic selfie (holding one's own camera or using a timer/tripd) is also copyrightable. In a bystander selfie, the contribution of the bystander may exist, but the contribution of the subject is not substantially reduced over the self-timer/tripod situation. Therefore there is a creative contribution by the subject and the subject may be a co-author. Do we have that part clear?
There seems to be an idea that authorship is exclusive, that if one is "the author" the other is not; the possibility of co-authorship is missed. Further, authorship and ownership are distinct. Once we establish that the subject in a bystander selfie is an author, under bystander selfie circumstances, we may then look at ownership. As there may be co-authorship, there may also be co-ownership.
To answer the question, what the subject creates in the bystander selfie is not merely the idea of the photo, but the subject of the photo itself. In Brod v. General Publishing, the writer physically arranged the objects to be photographed and generally directed the photography. The photographer still set exposure, exact framing, and maintained possession of the film. The court ruled that conditions made the writer a "co-author" of the images, even though there was no written agreement. It did not decide "work for hire," even though the photographer was paid: the photographer was not an employee. It did not deprive the photographer of copyright, and, in fact, the writer published the photos with notice of copyright by the photographer. The legal question was whether or not the writer could allow the photos to be published without obtaining specific permission from the photographer. Brod v. General Publishing, where the photographer sued the book publisher, is right on point for the issue and Commons policy.
Bottom line, flowers cannot claim copyright. What is missing is "intention." Now, does the flower intend to be beautiful? We could argue, in fact, but not at law.
Now, let's take the flower analogy closer to our bystander selfie case. Suppose the person with the idea has two cameras, and says to a bystander, "This opportunity won't last long. Here, take one of my cameras and take pictures from there. All the settings are ready, just make sure you have the entire flower in the viewfinder and press the button, I will take photos from this other position at the same time. (I'm making it plausible that the idea person doesn't simply take all the photos.) Who owns the copyright?
This is not a bystander selfie, but becomes analogous with regard to intentions, and camera ownership, which is relevant because of custody of the image. In this situation, as with a bystander selfie, the idea person walks away with the entire work product, reflecting an original intention that it is the idea person's work, and demonstrating the consent of the bystander. I have no doubt what a court would decide. Yes, the bystander could be a co-author. However, the conditions demonstrate a clear waiver of that right. If the wording of an Act of Congress appears to contradict this, the court will set it aside, unless legislative intention is clear.
However, we do not need to resolve this, we do not need to know if the bystander has a copyright, we need to know if the subject is *at least* a co-owner. The WMF legal opinion was "sole owner" (and I agree). If we are not happy with that, we still have the "co-owner" option, and that is, in fact, clear. --Abd (talk) 14:48, 18 April 2015 (UTC)[reply]
In the flower example, who owns the camera? I think that would end up being the determining factor. The person who owns the camera and gets to take it home, pretty much has control over the original negative or digital image. Anyway, I am glad to see this question raised and I thank Abd for raising it, and I totally agree with the premise. Robman94 (talk) 23:11, 21 April 2015 (UTC)[reply]
It is not exactly camera ownership which tells the story, it is custody of the data (or film, with film cameras) (as you imply). It is not that such custody itself controls, but rather that it indicates intention and the sole power to publish. That is, with a bystander selfie, the bystander has no power to independently publish, only the subject has that power, because of image custody.
Commons example: a train wreck, but the upshot appears to be that the photographer handed the undeveloped film to the subject, end of story. Absent agreement otherwise, that transfer of film was a defacto transfer of ownership, and any other interpretation would do violence to the work of the reporter. Notice the varieties of opinion in the discussion. (This is a more extreme example than a simple bystander selfie. I am not proposing creating a guideline to cover such cases, only bystander selfies, where the subject provides the camera and takes it back.)
Thanks, Robman94. It was enlightening to research this. --Abd (talk) 02:34, 22 April 2015 (UTC)[reply]
Right, by camera ownership I am implying ownership/control of the film/data. I guess if the 2nd person intended to retain his ownership of the photo, he would not freely give the camera/film back to the original person. Obviously this would all be easier if we all had "work for hire" forms readily available and get the bystander to sign them, but absent of that, this is a great proposal. We often have similar problems with band photos, where a band might get a friend to take a photo of them (they are all in the pic, so they can't take it themselves) and then the band keeps the original film/data and uses the pic as they see fit. ~ Rob. Robman94 (talk) 16:37, 22 April 2015 (UTC)[reply]
Yes, it's very common. What has happened is that because of the idea that "the photographer always owns copyright," which isn't actually true but which is possible, and then the precautionary principle is misinterpreted to mean that if there is any possibility at all of a license being improperly released we must not host, many photos are being deleted with only "could not possibly be 'own work' because uploader is in the photo."
In fact, the precautionary principle talks about "significant doubt." I've been asking for quite some time now for any cases showing the contrary of the proposed bystander selfie guideline. None have been proposed. There is no significant doubt. There are millions of bystander selfies taken per year. Maybe hundreds of millions. No cases.
Are we ready to take this to the community? --Abd (talk) 00:13, 26 April 2015 (UTC)[reply]
I  Support taking this to the community.   — Jeff G. ツ please ping or talk to me 03:05, 10 January 2018 (UTC)[reply]

Generally agree, but...

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I generally agree with this, but:

  1. I'd like to strengthen the section that begins "In other cases, where the camera is provided by the bystander or another..." to be absolutely clear that such "other cases" images are not allowed under this policy, and require the usual OTRS or other clear release.
  2. I have some concern about how this all may cross up with copyright law in various countries. In particular, I suspect that there may be countries where it is pretty specific that the person who snaps the shot holds copyright. Can anyone address that concern? - Jmabel ! talk 18:43, 29 January 2017 (UTC)[reply]

See also

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I quickly started Category:Bystander selfie-related deletion requests to build-up the “Commons case law” on this topic. Hope this is useful. Jean-Fred (talk) 19:15, 11 March 2019 (UTC)[reply]

Jean-Frédéric, There are two files I marked for deletions with the reason of copyvio as bystander selfie, But I am not sure where to put the category, as there are no deletion request pages but the thing happened on the file page. how to include it in the case law pool?

QueerEcofeminist "cite! even if you fight"!!! [they/them/their] 13:44, 21 March 2019 (UTC)[reply]

@QueerEcofeminist: Such categories are only for DRs.   — Jeff G. ツ please ping or talk to me 03:31, 22 March 2019 (UTC)[reply]

Status of proposal

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This policy proposal was proposed at Village pump/Proposals in January 2017. The proposal was never officially closed, but ended up being archived with approximately 11 people expressing support and 7 people expressing opposition. Kaldari (talk) 02:29, 22 April 2020 (UTC)[reply]

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