Opinions and Legal Insights

Who Owns Vacation Photos of You? Probably Not You–Hubay v. Mendez

A perennial copyright law professor hypothetical: who own the copyright to a person’s vacation photos? Obviously the vacationer owns the photos they take, including any selfies. But if you hand over the camera to a stranger/passerby, who owns that photo? As a default proposition, the person who takes the photo owns the copyright (unless the photographer is a monkey, in which case the photo is in the public domain #ThankYouNaruto). So does posting your vacation photos taken by someone else infringe the photographer’s copyright…?

This case involves a group, the Military Sexual Trauma Movement (MSTM), advocating for greater attention to sexual abuse in the military. MSTM organized an activism trip to Washington DC in September 2019. However, things went south when MSTM’s founder added to the schedule an optional protest at the house of the Marine Corps Commandant. Some group members worried that the Commandant might retaliate against MSTM members or their loved ones. After the protest, some of the plaintiffs resigned from MSTM and sent text messages saying “I withdraw my consent for any and all pictures or use of my name regarding the Movement and I decline consent for further use of my photos or name in any fashion.”

Losieniecki is the husband of MTSM activist Lubay. Using his wife’s camera, Losieniecki took 557 photographs on September 12, 2019 and 817 photographs on September 13, 2019. The plaintiffs allege the defendants posted 26 of those photos to social media. The evidence indicates that “Losieniecki had agreed, at least informally, to serve as photographer and take photographs of the D.C. trip.” The court found that “Losieniecki…likely would have permitted MSTM to use the photographs if not for the dispute over Ms. Mendez’s impromptu protest at the Commandant’s house.” Losieniecki wasn’t paid for his photography work (though he may have received free lodging), and there wasn’t a written contract or license.

Mendez and Losieniecki obtained dueling copyright registrations for the photos. As the actual photographer, Losieniecki is the presumptive owner, but MSTM argued the photos were an employee work made for hire. This was clearly a longshot, and the court rejects the argument for two reasons: (1) Losieniecki wasn’t a “hired” party per CCNV, and (2) the CCNV factors indicate that Losieniecki was more like an independent contractor than an employee. The court conducts a full CCNV analysis to validate these fairly obvious conclusions; check it out if you want the full legal geekery.

Thus, the court concludes: “Losieniecki has the exclusive right to ownership, control, and use of all photographs that he took in Washington D.C. on September 12 and 13, 2019.” The court invalidates Mendez’s copyright registration.

This ruling doesn’t end the lawsuit, however. MSTM may still be able to post the photos on a variety of grounds. Perhaps it can show an oral agreement to republish the photos. If not, could MSTM have an implied license? The answer is presumably yes, but perhaps Losieniecki destroyed the implied license. Fair use could still protect the posts. And what about those text messages purporting to withdraw consent? I’m not sure those messages did anything.

This case doesn’t directly address the ubiquitous situation where you hand your camera/phone to a stranger and ask them to take your photograph at the location of your choosing and perhaps with specific requests. Although there was some evidence that MSTM/Mendez told Losieniecki what they wanted him to do as the photographer, he still used his own equipment. That fact difference might better support a claim for joint ownership, or outright authorial status, on the part of the camera owner. Nevertheless, this ruling provides a cautionary tale of how a “friendly” volunteer could become a less-friendly copyright plaintiff.

On that front, I’m always sad when an advocacy organization starts in-fighting in court rather than working together on their common objective. MSTM has an important agenda. I hope the litigants can find a way to cooperatively advance it.

Case citation: Hubay v. Mendez, 2020 WL 6694406 (W.D. Pa. Nov. 13, 2020)

Note: you can check out my vacation photos at my Flickr page. Of course, the vacation photos are all pre-March 2020. To avoid the legal risks addressed in this post, when I’m on vacation, I always carry a stack of blank written releases that I get strangers to sign before taking my photo. You can take a copyright law professor out of the classroom, but the mindset lingers even on vacation.

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