Susan Shaw: If Ideas and Facts are Not Copyrightable, how about Someone’s Face?

Tuesday, March 3, 2009

If Ideas and Facts are Not Copyrightable, how about Someone’s Face?

PART 4

According to the Copyright Office, “the nature of the thing depicted or the subject of the photograph . . . is not regarded as a copyrightable element.” The reason for this is that facts and ideas are not copyrightable.

A lawsuit was filed against Oprah Winfrey by two photographers who had authorization to take photos on the set of Oprah’s show. Oprah used several of the photographs in a book, and the photographers sued her. The court determined that the photographers owned the copyrights in the photos because they were independent contractors. Oprah and her production company then said they were joint owners of the copyrights in the photos because they contributed Oprah herself who is featured, Oprah’s facial expressions, clothing, and the look and feel of the television show. The court determined these were non-copyrightable elements and the photographers prevailed.

Mel Gibson appeared on the Jimmy Kimmel show that aired in some markets after the Academy Awards. While briefly discussing Gibson's DUI arrest where he spouted anti-semitic comments, Kimmel then led to a scripted Gibson quick discussion of whether he also called a female police officer "sugar tits." Gibson denied saying it, the two laughed about it, and then Gibson said he'd wished he'd actually coined the phrase. "I wish I could copyright it" Gibson said, Kimmel agreed. Continuing the Donald "you're fired" Trump tradition, will we now be repeatedly exposed to Mel "Sugar Tits" Gibson?

Perhaps this is a Waterloo where the famous defend themselves with the "Right of Publicity"? For example, Arnold Schwarzenegger sued the maker of political Bobblehead caricature dolls, for infringing his “right of publicity.” Schwarzenegger comes from the entertainment world rather than the political arena, and he knows the value of himself. What's the matter with the politicians? Don't they understand the value of every nickel, penny or 10th of a cent? Jimmy Carter gifted the makers his book in response to his Bobblehead, and Rudy Giuliani carried his around for show and tell. Will Obama be next? Or worse—the Obama "Chia Pet"? @!?#&#!?

Educate yourself! Here is a link to a very good article at NYFA and here are a few books I have found to be of great value relative to these issues. Just click on any of the books below and go directly to Amazon. To be continued in Part 5...