Rosie O'Donnell's Ex Accuses Her Of Copyright Infringement... For Posting Photos Of Their Daughter To Instagram

from the make-it-stop dept

Fri, May 29th 2015 8:24am — Mike Masnick

Almost everything gets pretty contentious in a divorce. That's pretty much a universal truth. And now we can thank copyright for making things even more of a mess. Five years ago we wrote about a case involving a divorcing couple who fought over the thousands of photos that were amassed during two decades of marriage. As we noted at the time, it seemed a bit odd that no one brought up the copyright question during that fight. Well, now it's come to that. Comedian/TV host Rosie O'Donnell is apparently going through a (yup) contentious divorce with her wife, Michelle Rounds, and it's reached the point were Rounds is claiming copyright over a photo that O'Donnell posted to Instagram last week. Rounds, of course, says that she took the photo and thus holds the copyright. She even went so far as to file a takedown notice with Instagram -- though as of writing this, the photo is still up on the site.

This, of course, is not what copyright law is supposed to be used for -- but since so many people now see it as a sort of universal "censor this now" button, that's how it's being used. It would be insane for this to actually result in a lawsuit, but if it did, I would imagine that O'Donnell would have a decent set of defenses, from an implied license to fair use and more. But, really, that's besides the point. It's becoming fairly ridiculous how frequently people seek to use copyright law to just block things because they don't like it, not because of anything having to do with "promoting the progress." This is just the latest example -- which (once again) highlights the sheer insanity of automatically applying copyright to every work upon creation.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: children, copyright, divorce, michelle rounds, photos, rosie o'donnell

53 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Ninja (profile), 29 May 2015 @ 8:38am

The best way to make bad laws go away is to apply them in their full, idiotic glory. The use of copyright to censor stuff has been increasing lately from what I can feel so maybe this will push for better laws in that front?
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 8:39am

If you think about it...
Aren't children created works? If you lock up a child does it inspire you to create more works?
[ link to this | view in thread ]
jupiterkansas (profile), 29 May 2015 @ 8:40am

Before the internet copyright law mostly concerned businesses and professionals. The law was never designed or intended for the general population. It was supposed to keep businesses from stealing from each other.

Now copyright is everyone's concern, because everyone can copy just by typing CTRL-C and everyone can publish just by clicking "Upload". The current law is completely inadequate for the world we live in.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 29 May 2015 @ 8:45am

You're hilarious, Masnick.
[ link to this | view in thread ]
Anonymous Hero, 29 May 2015 @ 8:50am

Legal Notice
This is a legal notice that the stupid shit I'm typing now (referred to hereforth as "the comment") is copyrighted by me, Anonymous Hero.

By publishing "the comment" (referred to hereforth as "the stupid shit") without my explicit authorization, you are in violation of the rights inferred to me by the law.

You may direct your prompt apology and plans for redaction of "the stupid shit" to my counsel, Anonymous Lawyer.

Thank you, and good day.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 8:54am

Re: If you think about it...
I think they're refering to the photos
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 8:58am

Re: Legal Notice
By publishing "the comment" (referred to hereforth as "the stupid shit") without my explicit authorization, you are in violation of the rights inferred to me by the law.

I am using a portion of your intellectual property to show that fair use allows me to use your works to criticize you. Your statement, doesn't seem to recognized my rights to use your work to this end.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 9:09am

Re: If you think about it...
I found that actually having a child inspired me to NOT create new works.
[ link to this | view in thread ]
kenichi tanaka (profile), 29 May 2015 @ 9:12am

Before I get rapped on the knuckles for this, it's been established that the person taking the photograph (i.e., the person pressing the button that captures the image) is the rightful owner of that particular photograph. The one exception is with professional photographers who are paid for their services to take those photos (i.e., the person who paid the professional photographer is the person who owns the copyright to those photos).

While it's true that copyright law was never intended to cover this, it nevertheless has happened that the person taking the photo retains the copyright.

The law, like any living document, evolves to change with the times. July 17, 1790 was the first recorded instance of U.S. Copyright, and it had been signed in script type by George Washington and appeared in The Columbian Centinel and is the first known copyright act to protect books, maps and other original documents.

http://www.earlyamerica.com/firsts/first-u-s-copyright-law/

Since then, U.S. Copyright Law has evolved to over other intellectual works such as printed publications, video, audio, photographs and other original works. While technically, Mike is correct about copyright law not being intended to cover photographs, the law evolves.

I think it's a good idea that copyright law expands to cover new areas of intellectual rights and taking photographs is nothing new. After all, copyright law does protect photographs, just ask anyone who misappropriates an A.P. News photo. I actually hear about copyright takedown requests all the time, quite a few that are never reported on Techdirt.

While too many people, businesses, corporations and lawyers wield the DMCA like it was some ban-hammer demand for removal ... I do think that there are legitimate DMCA takedown requests, and it's become common that whenever someone reports a DMCA takedown request, that everyone just assumes it's a bad thing.

I do admit that while they are far and few between, not every takedown request is a bad thing.
[ link to this | view in thread ]
Anonymous Lawyer, 29 May 2015 @ 9:15am

Re: Legal Notice
For unauthorized use of my client's intellectual property, I have begun an investigation into your acts of intellectual property theft.

It seems that you, Anonymous Coward, have an extensive history of commenting on articles published by the website TechDirt.com.

I think it would be in our parties' best interest to settle out of court. You may contact my associate, Anonymous Shakedown, to work out the details.
[ link to this | view in thread ]
Anonymous Hero, 29 May 2015 @ 9:16am

(I'm happy to end this joke now).
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 9:22am

Re:
I think it's a good idea that copyright law expands to cover new areas of intellectual rights and taking photographs is nothing new.

Copyright only benefits those who wish to control others, by controlling what information and entertainment that they can see. Further the more that copyright is extended, the less freedom people have to express themselves.
Why do you want to introduce a new dark age by giving corporations the means to reduce people to the level of ignorant serfs, because that is where copyright maximalism leads via total control of all information, and all computerized devices by the corporations.
[ link to this | view in thread ]
Anonymous Anonymous Coward, 29 May 2015 @ 9:26am

Re: Legal Notice
How does your pushing the submit button impact your theory?
[ link to this | view in thread ]
Anonymous Shakedown, 29 May 2015 @ 9:27am

Re:
I would be glad to assist you with that, for the emminently reasonable sum of $5,000...
[ link to this | view in thread ]
John Fenderson (profile), 29 May 2015 @ 9:28am

Re:
"The one exception is with professional photographers who are paid for their services to take those photos (i.e., the person who paid the professional photographer is the person who owns the copyright to those photos)."

This is not true unless the photographer signs something declaring either that the work is "for hire" or transferring the copyright to you.

Lots of people have discovered this when they've tried to publish family photos taken by professional studios or when they discover those photos being used by the studio for marketing purposes.
[ link to this | view in thread ]
Goober (profile), 29 May 2015 @ 9:31am

Re:
Incorrect. The photographer, even if you pay him, still owns the copyrights to the pictures he takes. In the absence of an agreement to the contrary (such as in work for hire), the person hiring/paying the photographer does not own the pictures or their copyrights.
[ link to this | view in thread ]
Goober (profile), 29 May 2015 @ 9:32am

Re: Re:
You beat me to it.
[ link to this | view in thread ]
Nate (profile), 29 May 2015 @ 9:36am

According to a lawyer friend of mine who went through a divorce, the IP created during a marriage is owned by both spouses.

If the photo was taken during the marriage then Rosie has the right to post it.

Then again, IANAL so could someone back me up on this?
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 9:39am

Re:
I guess that's joint intellectual property.
[ link to this | view in thread ]
Anonymous Anonymous Coward, 29 May 2015 @ 9:39am

Re:
Not a lawyer either, but it may depend upon whether there are community property laws involved, and I think there are some places where they are not. The actual lawyers might correct me without offering any legal advise.
[ link to this | view in thread ]
Watchit (profile), 29 May 2015 @ 9:41am

Of course, O'Donnell's was only licensing the rights of happy memories with her children. It's not like she actually owns them.
[ link to this | view in thread ]
John Fenderson (profile), 29 May 2015 @ 9:42am

Re:
IANAL, but my assumption is that this aspect depends on what state you're in. I could see it being true in community property states, but not in the others. I assume this because in non-community-property states, such joint ownership is not automatic for physical things.
[ link to this | view in thread ]
limbodog (profile), 29 May 2015 @ 9:55am

Is there anything created by man to which copyright cannot apply?
I know patent is for inventions and copyright is for creative works, but what work doesn't at least involve a little creativity or artistry?
[ link to this | view in thread ]
Anon, 29 May 2015 @ 10:09am

New York
IIRC New York is an "equitable distribution" state, which would imply that any rational judge (not the qualifier) would allow that both spouses have ownership of property created during the marriage.

Of course, now that they're separated, presumably anything new is sole property - but quibbling over this sort of stuff just demonstrates the level of crazy. Hey, lady - you hit the jackpot. Rosie's got millions and millions (She once gave a $10M endorsement fee to charity). Whatever settlement you get, even 5% of Ro's money, is more than you'd ever earn on your own.

There's a male locker room saying about don't stick your dick into crazy; I suppose the corollary is "...or your fingers." Kind of reminds me of Giuliani (?) whose ex-wife demanded $30,000 as "child support" for their dogs. As one commentator said, he took the high road and paid it rather than drag things out, because he could afford it. I can't help thinking this too is another example of the greedy spouse shaking down the rich spouse.
[ link to this | view in thread ]
Derek (profile), 29 May 2015 @ 10:14am

"her wife"
As a total aside, I do believe that this is the first time I see the phrase "...her wife..."without it being a typo.
[ link to this | view in thread ]
kenichi tanaka (profile), 29 May 2015 @ 10:49am

Re: Re:
Goober, you are actually quite incorrect where it concerns photographers who are 'paid' to take photographs. Under the rule of law, the photographer, since he or she are being paid for their services, is considered 'under contract' for producing those photographs. They do not own the copyright.

This is why many professional attorneys suggest that when you hire or contract with a professional photographer that you state in the contract with that photographer that you retain all copies, negatives and masters of any photos that are taken or produced by the photographer. If you don't point this out in a contract agreement with the photographer, then the photographer will retain the rights to those photographs.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 10:49am

Re:
Copyright has a sordid history and its purpose/intent was a bit more nefarious than you allude.
[ link to this | view in thread ]
Anonymous Gyro, 29 May 2015 @ 10:52am

Re: Re: Legal Notice
TOS?
We don't need no stinkin TOS
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 10:56am

Re: Re:
"Why do you want to introduce a new dark age by giving corporations the means to reduce people to the level of ignorant serfs, because that is where copyright maximalism leads via total control of all information, and all computerized devices by the corporations."

Too late :/
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 11:00am

Re: Re:
Yes, but doesn't the unsuspecting public have at least a little recourse when they find their likeness promoting a product/service that they do not endorse?
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 11:02am

Re: Re: Re:
Not quite yet, as free and open source software still exists, and gives users control over many devices.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 11:02am

Re:
The children or the photographs?
[ link to this | view in thread ]
TMC, 29 May 2015 @ 12:00pm

The scholarship seems to agree that copyright is jointly owned in community property states. In marital/separate property states, seems like it is separate.

I'm well acquainted with the 'copyright is not meant to be used to censor' argument, but assigning copyright during the settlement phase (or judgment in community property states) and access to the DMCA is very useful, especially if there's a sex tape floating around.
[ link to this | view in thread ]
tqk (profile), 29 May 2015 @ 12:02pm

Re:
The best way to make bad laws go away is to apply them in their full, idiotic glory.

You'd think so, but it also appears to be the slowest way. Many people don't appear to even notice the first three (or ten) times they're smacked with a clue-by-four. We're breeding some very slow learners these days.

Just look at how slow the Streisand Effect has been getting out there to common knowledge, yet every day it seems some dipstick pops up their head oblivious to it. These are educated and on-line connected people like lawyers and PR flacks who should have been informed about it years ago.
[ link to this | view in thread ]
MadAsASnake (profile), 29 May 2015 @ 12:17pm

Doesn't this simply show just how much too far copyright has already gone? The requirement to register works for copyright, as it use to be, would have headed off silliness like this.
[ link to this | view in thread ]
John Fenderson (profile), 29 May 2015 @ 12:42pm

Re: Re: Re:
Potentially yes, depending on a lot of factors such as how the image was used, what state we're talking about, whether or not the subject of the photo is a public figure, etc.

But none of that is related to copyright law.
[ link to this | view in thread ]
John Fenderson (profile), 29 May 2015 @ 12:49pm

Re: Re: Re:
"Goober, you are actually quite incorrect where it concerns photographers who are 'paid' to take photographs."

I'm sorry, kenichi, but Goober is correct. In the absence of a contract saying otherwise, if you have photos taken by a professional photographer, what you are paying for is the prints, and the prints only. You don't get the copyright. That's why you don't get to have the negatives.

Here's a site that gives a fuller overview of the law: https://www.ppa.com/about/content.cfm?ItemNumber=1720
[ link to this | view in thread ]
Gwiz (profile), 29 May 2015 @ 1:04pm

Re: Re: Re:
Under the rule of law, the photographer, since he or she are being paid for their services, is considered 'under contract' for producing those photographs. They do not own the copyright.

Wrong. A freelance photographer (ie: self-employed) only gives up the copyright when he or she signs a written agreement that specifically states that the work is to be considered a work made for hire.

Here is what a lawyer for photographers has to say about it:
In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.
Source
[ link to this | view in thread ]
Anon, 29 May 2015 @ 1:31pm

Yes and No
There is such a thing as "work for hire" but for typical studio photographer who will take your portrait for a fee, for typical wedding photographers, etc. - the average Joe does *NOT* buy the copyright. The photographer makes extra money by charging for enlargements and reprints. They retain copyright. They also retain negatives, or nowadays, digital original files. Good luck getting your hands on those.

(When my wedding photographer went bankrupt, I took the option of buying my negatives and a letter transferring copyright for $500. These were really nice 120-size negatives. Worth it...)
[ link to this | view in thread ]
tqk (profile), 29 May 2015 @ 2:04pm

Re:
It used to be that people's worship of their deity had to be filtered through priests, and their "Holy Book" was written in a language zealously hoarded by said priests.

Today, lawyers serve the same function, or have managed to insinuate themselves into said function on Earthly planes of existence. It's a bit comical that the legal profession is still using that same zealously hoarded language the priests used for pretty much the same effect (locking out laymen from their sinecures enabling horrifically expensive "services" on their part). What a racket!
[ link to this | view in thread ]
jupiterkansas (profile), 29 May 2015 @ 2:12pm

Re: Re:
Yes, but my point is simply that it's never been a big concern for the general populace until recently, and now it's everyone's concern.
[ link to this | view in thread ]
Anonymous Coward, 29 May 2015 @ 5:32pm

Re:
antidirt just hates it when due process is enforced.
[ link to this | view in thread ]
Padpaw (profile), 29 May 2015 @ 10:41pm

wonder how the daughter feels about her father claiming he owns the copyright to her likeness
[ link to this | view in thread ]
Anonymous Coward, 30 May 2015 @ 12:32am

Re:
It's a two paragraph story, but apparently still too long for you to read before commenting.
[ link to this | view in thread ]
badkitten757@gmail, 31 May 2015 @ 7:58am

Re: Legal Notice
Lmao! Sharing this comment!
[ link to this | view in thread ]
Watchit (profile), 31 May 2015 @ 11:34am

Re: Re:
Both. Probably.
[ link to this | view in thread ]
Pragmatic, 1 Jun 2015 @ 6:21am

Re:
Copyright. Is. NOT. Property!

I repeat, copyright is NOT property.

One more time: copyright IS NOT property.

Copyright IS a TEMPORARY monopoly privilege. Framing it as a property right is what creates these situations.

/End rant
[ link to this | view in thread ]
nasch (profile), 1 Jun 2015 @ 9:54am

Re: Re:
You'd think so, but it also appears to be the slowest way.

What would be a faster way to get copyright reformed? I honestly hope you have an excellent solution.
[ link to this | view in thread ]
nasch (profile), 1 Jun 2015 @ 10:05am

Re:
You seem to have completely missed the point of the article. Mike is not claiming that photographs should not be copyrightable. He is saying that this use of copyright is not aligned with the ostensible purpose of copyright: to promote progress. While it is appropriate for the law to evolve to take into account new media and other factors, it should remain faithful to its constitutional authority (which it hasn't).
[ link to this | view in thread ]
nasch (profile), 1 Jun 2015 @ 10:07am

Re: "her wife"
As a total aside, I do believe that this is the first time I see the phrase "...her wife..."without it being a typo.

You have never seen anyone write about a lesbian married couple? Here's a whole bunch of other references if you to get used to it:

https://www.google.com/search?q="her+wife"

;-)
[ link to this | view in thread ]
nasch (profile), 1 Jun 2015 @ 10:21am

Re: Re: "her wife"
I meant "if you need to get used to it".
[ link to this | view in thread ]
nasch (profile), 1 Jun 2015 @ 10:27am

Re:

I'm well acquainted with the 'copyright is not meant to be used to censor' argument, but assigning copyright during the settlement phase (or judgment in community property states) and access to the DMCA is very useful, especially if there's a sex tape floating around.

Useful to someone who wants to use copyright to suppress something they don't want to get out, or prevent someone else from benefiting from it. Not useful in promoting progress, which is what copyright is supposed to be for.
[ link to this | view in thread ]
nasch (profile), 1 Jun 2015 @ 10:28am

Re:
wonder how the daughter feels about her father claiming he owns the copyright to her likeness

To particular photos, not to her likeness. Also, not her father.
[ link to this | view in thread ]