TMZ had a lot of fun back in 2014 after Oscars host Ellen DeGeneres gave Bradley Cooper a smartphone during the awards ceremony to snap a now-famous selfie of several big-name stars. In a post dubiously labeled an “exclusive” at the time, TMZ wrote, “Ellen DeGeneres does NOT own the picture that broke Twitter… unless he signed his rights away, the owner of the famous Oscar pic is Bradley Cooper.”
The celebrity news site then offered a kindergarten-level explanation that ownership of the photo rests not with the person who owns the camera or organized the shoot, but rather with the person who took the photo. “So unless Bradley signed his rights away to the Academy, he’s the copyright owner,” declared TMZ, not bothering to inform its readers that this was merely a theory that would hold no weight without any assertion of ownership and maybe a judicial declaration.
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Now, two years later, TMZ and parent company Warner Bros. are actually putting the theory to the test.
Jared Leto’s Sisyphus Touring company is suing TMZ for allegedly violating copyright to a video that features the Suicide Squad star and an engineer at a home studio critiquing various songs off of Taylor Swift’s 1989 album. In the video, Leto admires Swift’s work, but at the end, he becomes indifferent and states, “I mean, f— her. I don’t give a f— about her.”
After TMZ‘s purported “exclusive” post about this video went viral, and Leto apologized, he filed a complaint in California federal court in hopes, in his own words, that “it will encourage more people to stop trafficking in stolen goods.”
After the lawsuit was filed, TMZ turned around and sued its source — the videographer, who was promised $2,000 by TMZ to turn over the video. This guy, originally identified as Jacob Guy Miller but since amended to be Naeem Munaf, is said to have agreed to a deal before urging TMZ not to publish. Nevertheless, according to Leto, after being advised that the video was stolen, TMZ “rushed to publish.”
In the latest development in the case, TMZ filed a summary judgment motion on Tuesday and makes an argument that’s eerily reminiscent of the one over the Oscar selfie, even if it’s now graduated beyond kindergarten.
“Copyright ‘initially vests in the author or authors of the work,’” states TMZ‘s memorandum. “As the Supreme Court has explained, ‘the author’ is as a general rule ‘the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.’ In this case, Mr. Munaf authored the Munaf Video: he shot the video alone, using his own equipment, and thereby ‘fixed’ the scene he recorded into a ‘tangible medium of expression.'”
So just like Cooper, this would make Munaf the copyright author.
Why not DeGeneres — errr, Leto?
“Sisyphus claims that it owns copyright in the video under the ‘work made for hire’ doctrine,” continues TMZ‘s court filing. “There are only two ways that a copyrighted work may be a work made for hire, and Sisyphus satisfies neither of them.”
According to TMZ, Sisyphus would be considered the author of the work if it were prepared by an employee within the scope of his or her employment, but “Munaf is not and never has been a Sisyphus employee.”
Sisyphus would also be considered the author if the work was specially ordered or commissioned for use as part of a motion picture or audiovisual work, but the caveat there is that the parties must expressly agree in writing that the work shall be considered a work made for hire.
Here’s where the dispute figures to center, as it appears that three months after the videographer shot the footage of Leto in the recording studio, as Leto and TMZ went to war, Munaf and Sisyphus executed such a written agreement.
TMZ contends, though, that the written instrument must precede the creation of the work to truly qualify as a work-for-hire agreement. The brief points to some case law to support this proposition. “The reasoning of these decisions ends Sisyphus’s case,” states TMZ.
But what if Munaf simply transferred or assigned his rights to the video to Leto’s company?
Even if there was such an agreement, argues TMZ (disputing that’s what the videographer’s deal with Sisyphus actually does), it would be too late.
“Mr. Munaf already had assigned — on December 4, 2015 — ownership of the Taylor Swift Excerpt to TMZ,” states the defendant. “The assignment to TMZ trumps any later attempt by Mr. Munaf to assign ownership to Sisyphus. At a minimum, Mr. Munaf’s agreement with TMZ and his sending the Taylor Swift Excerpt to TMZ for its use creates an irrevocable implied license from Mr. Munaf to TMZ.”
Leto’s company, which filed its own motion for summary judgment asserting that TMZ doesn’t have “fair use” to the video, will now get a chance to reply. There could be some quarrels about TMZ’s work-for-hire analysis as well as perhaps some thoughts about whether Munaf repudiated or revoked any grant to the celebrity news site. And if TMZ loses the argument, some of the reasoning in its 2-year-old story about an Oscar selfie could be equally worthless.
