At any given moment, someone may hand their iPhone to a bystander to take their picture. The bystander snaps the picture and hands back the iPhone, and while a memory may have been captured for the iPhone’s owner, this scenario raises the legal question of who owns the copyright in the resulting image.

As it turns out, the answer was given by the Supreme Court over one hundred years ago. However, a recent court case from the Northern District of Illinois has attracted attention due to the unusual circumstances concerning the plaintiff and the unexpected result when considering the ownership of the photographs.

Below, we consider how the district court may have erred by dismissing the case, and how the question of whether the plaintiff or the bystanders were the authors of the photographs at issue, for the purpose of copyright ownership, likely remains open.

Background

In Shah v. NYP Holdings, Inc. (January 18, 2023), plaintiff is an individual who spent 5½ years in prison for mailing letters to millionaires and threatening to kill their families unless they paid him millions of dollars.

Before his arrest, plaintiff attended parties in Hollywood where he induced celebrities to take photographs with him. He uploaded the celebrity photos to his Facebook account and his IMDb internet movie database page. When plaintiff was arrested, several news organizations published stories about him and included some of the celebrity photos.

After emerging from prison, plaintiff registered copyright in 20 of the celebrity photos and, representing himself, sued the news organizations for copyright infringement and other causes of action. Who wins?

In a “normal” case with a “normal” plaintiff represented by counsel, one might expect the outcome to turn on a fair use defense by the news organizations. With a plaintiff of this background representing himself, the decision might turn on other points and it did.

Shah’s Argument

On the main claim - copyright infringement – the news organizations successfully moved to dismiss on the ground that plaintiff was not the author (or owner) of the copyrights in the photos. The judge applied the rule that the photographer is ordinarily the author of the photograph. However, on the basis of hoary precedent, it appears that the court, possibly too eager to dismiss the case, may have erred.

Plaintiff alleged that he had arranged for the celebrities to stand with him, posed the pictures, set all necessary settings on the cameras, and then handed the cameras to bystanders who did nothing other than click the shutters.

From plaintiff’s description, the work that the bystander-photographers did could equally have been done with a tripod and time-delay shutter, had a tripod been handy. Who was the author? Plaintiff or the shutter clickers?

The 1884 Supreme Court Precedent

In 1884, the Supreme Court decided that photographs could be copyrightable works within the meaning of the Copyright Clause of the Constitution. In Burrows-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) the Supreme Court asked and answered the question what copyrightable authorship there was in a photograph. Viewed in 1884, photography did not involve any traditional artistic exercise like drawing or painting a scene, but merely involved operating a machine that reproduced what was in front of it.

The Burrows-Giles court found copyrightable authorship in the design of the scene to be photographed:

posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.

111 U.S. at 60.

The Burrows-Giles court did not discuss skill or artistry involved in setting the camera’s technical features.

In the Shah case, plaintiff claimed that he performed all of the foregoing authorship plus setting up the camera. The Shah court, considering a motion to dismiss for failure to state a claim, did not discuss these matters. It did cite Burrows-Giles, but for another point: [w]ho is the author of a photograph?

From Burrows-Giles, the Shah court drew the conclusion that the photographer, rather than the plaintiff, was the author. The Burrows-Giles Court did indeed decide that the photographer there was the author. It relied on an English case, which decided that the photographer there, rather than studio where the photographer was employed, was the author. (Under American law, the work made for hire principle might make the studio the author, but that was not an issue in Burrows-Giles).

The Shah court, however, did not consider why the photographer was deemed the author in Burrows-Giles. In the English case quoted by Burrows-Giles, the court said, “it is the person who effectively is as near as he can be, the cause of the picture which is produced, that is, the person who has superintended the arrangement, who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be — the man who is the effective cause of that.” 111 U.S. at 61 (quoting Nottage v. Jackson, 11 Q.B.D. 627 (1883)).

The artistic work that makes the photographer the author cited in Burrows-Giles was exactly what Shah claimed, necessarily without contradiction on a motion to dismiss. Might the bystander who clicked the shutter have framed the picture a little differently from an inanimate tripod? Yes, but it seems a doubtful result to make that framing into the creativity in a photograph that determines who is the author, when all the rest of the creative work has been done by someone else.

It is therefore strongly arguable that the bystanders who merely clicked the shutters of the cameras after Shah made all of the artistic arrangements were not the authors of the photographs for copyright purposes and that the court in Shah should have found another basis for dismissal (e.g., a fair use defense, or even the prevention of unjust enrichment) rather than a problematic reading of precedent.

Conclusion

It seems very likely that a fair use defense would easily have disposed of this case – news organizations have considerable latitude in illustrating legitimate news items. It may also be that the odious Mr. Shah did not present a sympathetic plaintiff to the court, justifying a dismissal rather than permitting him to be unjustly enriched.

It is said that hard cases make bad law. The moral of this case, perhaps, is that easy cases can make bad law, too.