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An amateur photographer at a scenic rest stop sees a couple trying to compose a decent photo of themselves with the beautiful river in the background. This happens so often that as he approaches nobody even needs to say a word: They hand him their camera, and then step back so he can take their picture with it.

But in this hypothetical scenario something extraordinary happens: As he takes their picture a commercial airplane doing an emergency landing hits the river in the frame of the photo. So he happens to have pressed the shutter button on what turned out to be a very valuable picture. Let us supposed that a media buyer offers $10k to license the photo. Who owns the copyright to that photo?

On the one hand, the camera owners could argue that the photographer exercised no more "creative expression" than does a tripod or selfie stick. They just didn't have one handy, so they composed the photo and the photographer was just a mechanism to hold the camera and release the shutter. Therefore, they must own the copyright.

On the other hand, the photographer could argue that he "fixed the expression" of the creative work. As an experienced photographer he made subtle decisions regarding framing and timing of the photo that were outside of the control of the couple. Alternatively, if he hadn't been volunteering to photograph the couple with their camera, he could have instead been holding his own camera and captured the valuable element of the photo, which was the serendipitous emergency landing.

Does any law or jurisprudence inform who owns the copyright in this scenario?

If the aforementioned facts suggest it is the couple (and owners of the camera), then let us change one fact: After taking the couple's desired photo, the photographer sees the airplane out of the corner of his eye and, with no time to spare, shifts the camera to capture a separate spectacular photo of the water landing. Does he now have firm claim on the copyright to that photo?

And if so, can the photographer enforce his property rights in the photo, given that it was captured and is stored on equipment he does not own and cannot legitimately possess? I.e., can't the camera owner say, "OK, you own the photo copyright, but I own the medium where you put its only copy, and I will not sell or grant you access to that medium except for the full value of the photo."

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What a lovely question!

Copyright law is clear: the author of a creative work owns the copyright unless it is work for hire. In this instance, the photographer is not doing work for hire so they own the copyright.

However, the photographer does not own a copy of the photograph – that is owned by the owner of the camera. The photographer cannot demand that they give him a copy but the parties can agree on such a transfer on whatever terms they like.

As the owner of a “physical” copy they can do what they like with that copy but they cannot duplicate it except as fair use or as licensed. They could sell the memory card to whomever they like but the new owner couldn’t copy it either so it would seriously limit publication. Similarly they could move the file provided there was only one copy. Arguably, they could make a print of it providing they deleted the electronic version without copyright violation.

Which brings us to who owns the copyright now. The camera owner can argue that the photographer has gifted the copyright to them. This is quite a strong argument as the parties' intentions at the time of arranging the taking of the photograph is that the photographer would have no further interest in it – after all he probably doesn’t want to hang a photo of some strangers on his wall.

As a fallback position the camera owner can argue there is an implicit license given even if copyright was not transferred. The scope of the license then becomes an issue. It is probably indisputable that the license is perpetual and royalty free. What is arguable is if the license allows commercial exploitation or only personal use. This is where the battle lines would be drawn and I don’t know how it would play out.

  • Nice one. So they effectively have the choice of agreeing how to share the $10K, or all leave empty handed. – gnasher729 Dec 11 '17 at 0:23
  • Another interesting aspect of not owning the only existing copy is that the copyright owner cannot register the copyright and therefore may have no standing to sue in US federal court for infringement. 17 USC § 411. This becomes moot when the infringement is a publication, giving the public and the copyright owner lawful access to that copy, although it may be a derivative work. – Upnorth Dec 25 '17 at 6:07

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