Public Domain Monkey Selfie Now In A Trademark Application, Using Photoshopped Gap Images [Updated!]
from the spot-the-infringement? dept
Update: And this story gets even crazier. Please see this update in which the real Saban Capital Group claims this is being done by an impostor Saban Capital Group.Okay. If you want a law school exam question, let's start with this one:
A London photographer visiting Indonesia, leaves his camera on the ground, leading a macaque monkey to pick it up and take a selfie:Special tips of the hat to Eriq Gardner for spotting the trademark application and the folks at Five Useful Articles for noticing the photoshopping of Gap clothing (and for inspiring me to try to turn this into a law school exam question).Despite protestations from the photographer (the monkey has remained silent), most experts agree that the photograph is in the public domain. Years later, Saban Capital Group, formed by former rock star/entertainment industry mogul Haim Saban (or not, as this update notes) has attempted to register a US trademark on this semi-familiar looking image: 
The plan (according to the application) is to put this on all sorts of clothing, including (no joke), wedding dresses. 
In order to show how Saban is using the mark in commerce, it has offered up this image:Of course, it turns out that that's really just taking the public domain monkey selfie and photoshopping it onto a Gap catalog photo (Saban does not own the Gap). 
So, to recap: we have a (most likely) public domain monkey selfie image, which someone else is seeking a trademark on, using another company's photoshopped photos. In this scenario, please describe how much the lawyers are going to bill to sort this all out? 
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Filed Under: clothing, copying, copyright, haim saban, monkey, public domain, selfie, selfie monkey, trademark
Companies: saban capital group
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I think this legal question was answered in 1974
"I am a musician and the monkey is a businessman. He doesn't tell me what to play and I don't tell him what to do with his money."
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Re: I think this legal question was answered in 1974
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Only with the most asinine logic could it be "public domain", in which the monkey is a person. Monkeys are not people, neither in law nor in practice. Worse still, if this particular monkey was a person, it still wouldn't be an image in the public domain... it would either be the monkey's or still the photographers. If the former, we then have a situation where you believe the monkey to be enough of a person to steal the copyright status away from the photographer but not enough of a person to retain it for himself, and with the latter the monkey would just be an employee/volunteer who conveys the copyright to the photographer under a work-for-hire status.
If we're going to reform copyright, we have to choose our battles wisely. This isn't a battle wisely-chosen.
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The photographer has openly admitted that the whole thing happened by accident. He did not deliberately leave the camera around in the hope that a monkey would take a picture.
Thus there is no creative input from the photographer and hence the image is in the public domain.
You are right that the monkey cannot have a copyright - but wrong in your apparent belief that there has to be a copyright. There is no copyright and hence the image is in the public domain.
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"The picture was an accident and not the result of my creative input."
If the picture is actually "very good", then it's difficult for anyone to prove you didn't intend to take it. You're still a human photographer who took a photo, so by the current rules you're entitled to copyright on the picture.
What makes the monkey picture so interesting is that it was clearly a selfie taken by the monkey and so ended up as an interesting case study.
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deliberately.
I missed a word out, which might alter the meaning so correcting that here :)
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The monkey selfie...
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Yes, there are a lot of pictures that should be in the public domain but are currently not.
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The monkey took his own picture.
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1) The photographer (monkey) is not human, and so is not covered by copyright law, so the image is in the public domain (this has been established for a while, and the department that creates copyright in the first place has ruled that this isn't covered, so it's not).
2) Public domain works can be used by anyone, in any legal way -- see Disney and all of their popular animated movies. In this case, the PD photo was used as a template for a clip-art rendition (which is most likely under copyright by whoever created it -- it's not the original photo).
3) We've got a trade-mark application here, where a public domain work is being used as the basis for a trade brand. However, as noted, the clip-art rendition is likely under copyright, so does have an owner (who is most likely related in some way to the person seeking trade rights).
4) Trade mark applications require proof of use in trade. In this case, that was faked by digitally overlaying the image over a stock image owned by a third party.
5) This means the application should be rejected, as valid proof was not presented.
6) Unless the applicant actually got permission from the rightsholder for the original photo, they have breached copyright law in submitting the photoshopped image with their application. However, this is a civil issue, and as the image was not being sold or distributed except in a government application form, it is unlikely that the Gap (or whoever holds the copyright) will sue for damages.
I'll leave the rest up to the law students :)
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Completely by accident, by his own admission. Are we really so obsessed by copyright that you get to copyright whatever gets created when you leave things lying around? If we're to think of copyright as something to "promote the useful arts" rather than as a means to profit, this is about as far from that idea as you can get.
Yes, if the photographer had set up triggers and deliberately created a situation to create the image then this might be a different conversation. But, he didn't. Picking up your camera to see that something else has used it to accidentally record an image should make it copyrightable.
"Only with the most asinine logic could it be "public domain", in which the monkey is a person."
Yes, which is probably why nobody's saying that. they're not saying that the monkey holds the copyright. They're saying that the photograph does not have a copyright since the photographer was not a human being. Public domain means, by definition, that the copyright belongs to the public rather than any one individual.
"If the former, we then have a situation where you believe the monkey to be enough of a person to steal the copyright status away from the photographer"
That's a pretty bad mindset, and a symptom of the disease that is "intellectual property". The idea that someone automatically "owns" something that was created purely by accident and that the subject in the photo itself is "stealing" if he tries to assert control over a photo of himself is not a healthy mindset.
"This isn't a battle wisely-chosen."
I disagree. Photographers demand that the copyright belong solely to the person taking the photo, and that nobody else - not even the subjects in the photograph itself; not even if they have not agreed to any contract - has any claim to it.
So, by the industry's own insistence, the copyright belong to the person taking the picture. Since there is no such person, the photograph does not have any applicable copyright and thus passes to the public domain where all art and culture ultimately belongs. Fairly logical, in my eyes.
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We did a full analysis of the relevant laws here:
https://www.techdirt.com/articles/20110713/11244515079/can-we-subpoena-monkey-why-monkey-self-p ortraits-are-likely-public-domain.shtml
It's his photo in any sane scheme.
Only if you falsely believe *someone* has to have the copyright.
Only with the most asinine logic could it be "public domain", in which the monkey is a person. Monkeys are not people, neither in law nor in practice. Worse still, if this particular monkey was a person, it still wouldn't be an image in the public domain... it would either be the monkey's or still the photographers.
No, actually, the opposite. The reason it is in the public domain is because the law is explicit that only humans can get copyright. That's why it's not the monkey's.
You seem to assume that someone has to own the copyright. That's not how copyright works.
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That may have been a typo, but unfortunately it seems to be one that several people believe is accurate. 'No such thing as no-one owns it, if a picture is taken, someone has to own it.'
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irrelevant
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He has spent his entire life taking pictures and was completely outdone by a monkey that picked up his camera when he wasn't looking.
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Copyright applies to creative expression fixed in a tangible media. Since the photographer did not create the expression nor fix it in a tangible media, the photo is not copyrightable.
When this first happened, a publisher had a similar lapse and claimed to Mike that, while he might argue about the photo's copyright, he certainly couldn't claim the copyright himself. The idea that a photo may be uncopyrightable couldn't even occur to him.
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To do the opposite creates no end of problems with people saying they encouraged a famous photo to be taken with the photographer playing the trained monkey in this.
The problem here of course is that copyright is a human concept meaning no macaque monkey can own copyright. That means this photo is expelled from copyright into the public domain.
You can always get this macaque monkey in Court though to fight for his copyright when he should be as good as many rights holders in terms of pointing fingers and screaming tantrums. I just don't see it working out.
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Monkeys taking selfies
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(*) This action doesn't directly remove the original work, granted, but given the history of these kinds of things it would probably be used against anyone else making a competing product using another transformative work based off the same public domain source.
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Fun post. I think the IP questions are interesting (and more likely to be on an exam!). Is the monkey selfie copyrighted? Is the new image fair use? To what extent is the new image itself copyrightable? Is the new image on the gap's shirt registrable as a mark?
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"Is the monkey selfie copyrighted?"
http://arstechnica.com/tech-policy/2014/08/monkeys-selfie-cannot-be-copyrighted-us-regu lators-say/
Apparently not.
"Is the new image fair use?"
Fair use is a defence when accused of copyright infringement. Irrelevant since the image is public domain.
"To what extent is the new image itself copyrightable?"
I'm hazy on this, but my belief is that it is so long as it's sufficiently different from the original public domain image. Perhaps an actual lawyer (or American) can clarify?
"Is the new image on the gap's shirt registrable as a mark?"
You may have misunderstood the article. The Gap did not create the shirt, it was an example image created by Saban for their trademark application. They just happened to "steal" (to use the maximalists' own term) Gap's model photo in the process.
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Fair use is a defence when accused of copyright infringement. Irrelevant since the image is public domain.
On a law school exam, you can't assume the facts! You're correct that its copyright status matters, and fair use would be irrelevant if the original is not copyrighted. But you should have also run through the analysis assuming it is copyrighted. Sorry... You only get partial credit for this! I would have given extra points if you mentioned the choice of law issue.
I'm hazy on this, but my belief is that it is so long as it's sufficiently different from the original public domain image. Perhaps an actual lawyer (or American) can clarify?
It's copyrightable to the extent it's original, I think. So here the protection would be "thin."
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If you bothered to open the link from the previous comment, you would be able to see that the US Copyright Office has determined that this picture has no copyright.
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average_joe regularly assumes everyone else who disagrees with various copyright enforcers - ranging from Cary Sherman to John Steele - must be pirates.
"Not assuming the facts" is not a strong suit of his, along with "telling the truth".
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In real life, you can look at the record that it's been found to be public domain.
This might be why I find legal wrangling so mystifying sometimes, if documented facts aren't something you can "assume" regarding something that copyright maximalists insist are so set in stone that an automated algorithm can determine copyright status.
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Issue is the trademark application, not the selfie
The drawing of the monkey photograph has human creative content, so copyright is reasonable, though other people could do their own drawings of the photograph without it being derivative work. Trademarking it is probably ok as well.
But a trademark application that has the picture Photoshopped onto Gap's content? Not the best move.
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It's an interesting question
Does that mean the photoshopper gets the copyright on the new, heavily edited, work? Does it go into the public domain? Does the original artist retain some rights over it, if the uses of the edited version fail the fair use standards?
And in this case, does the original work being in the public domain change any of those answers? The source material for most of Disney's older works are in the public domain, but their specific expressions are protected. Would that not apply here as well? If the changes were deemed to be transformative, then this specific expression could be re-copyrighted, no?
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Not true. You can use a public domain image for a trademark. You can also use letters, words, numbers, and lots of other things that do not qualify for copyright protection.
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It doesn't have to be unique or copyrightable. Just uniquely used in commerce to differentiate the brand.
I'm generally very against the expansion of IP, but I'm not seeing how this particular image shouldn't be eligible.
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Question.
They'll take 50% of what you have now, plus 50% of your sales later, plus 25% of what you have now, but they'll receive that after the case is over, plus 50% of your projected sales, plus 100% of the difference later, plus 25% of anything you have left after all outstanding payments have been made.
You do the math.
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Monkey Selfie
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However, they would be happy to investigate if they can pursue any case for the Gap, either copyright or defamation..
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truth of copyright
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