Last fall, I wrote about a lawsuit filed against Oprah Winfrey by two photographers who had authorization to take photos on the set of Oprah’s show. Oprah used several of the photographs in a book, and the photographers sued her for infringement. The court determined that the photographers owned the copyrights in the photos because the photographers worked as independent contractors.

Oprah and her production company, as a fall-back, claimed they were joint owners of the copyrights in the photos. According to U.S. law, a joint owner can use or license the copyrighted work without the consent of the other owner, provided that the use does not destroy the value of the work, and the parties do not have an agreement requiring the consent of each owner for use or licensing.

Oprah and her production company claimed they were joint owners of the copyrights because they contributed Oprah herself (who is featured in the photos), show guests, Oprah’s facial expressions, clothing, and the look and mood of the televison show. The court determined these were noncopyrightable elements. According to the Copyright Office, "the nature of the thing depicted or the subject of the photograph . . . is not regarded as a copyrightable element." The reason for this is that facts and ideas are not copyrightable. Because Oprah and her production company did not contribute copyrightable elements, it was ruled they cannot be joint owners of the photo copyrights.