If You Ask Your Friend To Take Your Photo Using Your Camera, Who Owns The Copyright?–Shah v. NYP

By: Eric Goldman (Technology & Marketing Law)

Vivek Shah attended several Hollywood parties. While there, he preset the settings on his phone camera (including shutter speed, white balance, ISO, metering type, and exposure value) and asked friends or bystanders to use his phone to take photos of him with celebrities. He posted the photos to Facebook and his IMDB page (this one?).

In 2012, the FBI arrested Shah for extortion, which sparked news coverage. The media entities republished 20 photos he uploaded to Facebook and IMDB and misattributed the photo credits. After he was released from jail, he got copyright registrations for the photos and sued (pro se) the media entities for copyright infringement, 1202 violations, and more. Here’s an example of a subject photo from his complaint (which, based on this ruling, I’m now confident he can’t sue me for; plus fair use), with some pretty obvious photography flaws:

His copyright claims raise a simple but troubling question: who owns the photos taken with his camera? We know that he doesn’t have any copyright in the photos just because he appears in them (that would be an Innocence of Muslims redux). Instead, either he owns the photos because he owned the equipment and directed its usage, or the friends/bystanders owns the photos because they pressed the button. The court says:

Shah alleges that he gave the camera to another individual to take each photo. Because those individuals, not Shah, captured the photographs, they are the “author[s] … who actually create[d] the work[s]” and would be entitled to copyright in those photographs. Shah has thus not alleged that he is the sole author of any of the photographs.

Shah can’t be a joint owner because he claims he wanted the copyrights for himself, which disproves the intent to make a joint work. (That’s a bit of tricky logic, but it checks out)…

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