Jordan Eliasson, a student in Jon Pfeiffer’s Spring 2015 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the prompt: Jane is a professional wildlife photographer shooting Chimpanzees in the Congo. One day, Jane forgot a camera in a tree. When she retrieved it the next day, she was amazed to find that a clever chimp had snapped a selfie. Jane posted the image to her Instagram account. When she returned to the US a few months later, Jane discovered that a national retailer was selling t-shirts featuring the image. Does Jane own the copyright to the image? Why or why not?
First off, talented monkey. Secondly, I believe Jane owns the copyright to the image. When one signs up for an Instagram account, they must complete their registration by accepting the terms and conditions that apply. We can all account for skimming by numerous pages of 5 point font print and pressing the appealing “accept” button so that we can move on with our lives. However, when one presses that “accept” button, they enter themselves into a contract with the organization, in this case, Instagram.
The person who obtained the image from Jane’s Instagram account violated the guidelines by using the photo, which was not rightfully hers. Not only did this person share the photo with others, she decided to use the photo, make t-shirts and make a profit off of Jane’s intellectual property. As a defendant, she would have a hard time arguing that her use of Jane’s image was “fair.”
In this circumstance, I believe Jane should sue the retailer on account of copyright infringement. Jane has solid evidence against the infringer including Instagram’s terms and conditions and the fact that the infringer has made profits from the use of Jane’s copyrighted work. From what I have learned and recall in Business Law, Jane should be awarded statutory damages based on what the federal court feels fair.
The only hope I see for the infringer is he or she can prove that the images and t-shirts were being produced for another reason besides profit; perhaps educational use on chimpanzees and saving them from extinction. Maybe the infringer works for a non-profit chimpanzee conservation and wanted to use donations towards a new facility. In my opinion, the infringer will have to get creative because, given the facts, Jane will preside in the case.
Next time, the infringer should just double tap and move on.
Jordan is a senior at Pepperdine University majoring in Public Relations.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.