Public Domain Monkey Selfie Now In A Trademark Application, Using Photoshopped Gap Images [Updated!]

Trademark

from the spot-the-infringement? dept

Tue, Nov 18th 2014 6:17am — Mike Masnick

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: 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?

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).

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Filed Under: clothing, copying, copyright, haim saban, monkey, public domain, selfie, selfie monkey, trademark
Companies: saban capital group

57 Comments

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Ninja (profile), 18 Nov 2014 @ 5:16am

I'm picturing the macaque monkey staring down this intellectual property madness over his selfie and thinking "Dumb people!" and then scratching its ass.
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Anonymous Coward, 18 Nov 2014 @ 6:27am

I just want to know if he asked the monkey if it's picture could be taken , I'm sure the monkey would appreciate a cut of the money he's trying to extort from others.
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New Mexico Mark, 18 Nov 2014 @ 6:40am

I think this legal question was answered in 1974
The key legal question concerned a person playing music while a monkey (minkey?) collected money in a cup. When confronted by law enforcement collecting musical performance fees without a license, the musician's rebuttal was:

"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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John O, 18 Nov 2014 @ 6:45am

How is this image in the public domain? I'm no fan of copyright, but the photographer created a situation which triggered the camera. It's his photo in any sane scheme. His finger doesn't have to click the button, after all. He can set a timer and then go about setting the stage for a picture. He can leave the camera underneath a tree with the intention that falling leaves trigger exposure.

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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hij (profile), 18 Nov 2014 @ 6:50am

Monkeys taking selfies
I am no longer surprised by the human propensity for power and control. I am still a little concerned that monkeys taking selfies is not copyrightable. If this is really the case then tumblr will soon be out of business and half the pictures on my dashboard are free for everyone!
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PaulT (profile), 18 Nov 2014 @ 6:54am

In a way, this neatly illustrates the mindset of the pro-copyright brigade. They have no problem taking from others in violation of copyright, or removing something from the public domain(*), but they demand to lock up whatever they feel they "own". I can certainly understand the reasoning behind a trademark application, but it's a bit rich to base the whole thing on the works of others while trying to prevent others from doing the same with your work.

(*) 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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Richard (profile), 18 Nov 2014 @ 6:55am

Re:
How is this image in the public domain? I'm no fan of copyright, but the photographer created a situation which triggered the camera. It's his photo in any sane scheme.

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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Anonymous Coward, 18 Nov 2014 @ 7:16am

Re: Re:
Also in light of the facts Richard stated above, the US Copyright Office already deemed the photo in the public domain. A quick online search, or even a dig through the Techdirt archives can pull this information.
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David (profile), 18 Nov 2014 @ 7:17am

Re: Re:
Based on you response, If I try to take a picture of a very quick event and I accidentally miss the event but get a good picture anyway, the picture is in the public domain. The picture was an accident and not the result of my creative input. If that is the case then there are a whole lot of copyrighted pictures that should be in the public domain.
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PaulT (profile), 18 Nov 2014 @ 7:19am

Re:
"but the photographer created a situation which triggered the camera."

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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Mike Masnick (profile), 18 Nov 2014 @ 7:26am

Re:
How is this image in the public domain?

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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Oblate (profile), 18 Nov 2014 @ 7:27am

Re: Re:
If he had given the monkey a banana, could he claim this as a work for hire?
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Anonymous Coward, 18 Nov 2014 @ 7:30am

Re:
The monkey took the picture (hence the term selfie).
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Dan T., 18 Nov 2014 @ 7:30am

Mind The Gap!
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Anonymous Coward, 18 Nov 2014 @ 7:32am

Re:
I went to school with the supposed photographer. He was a dick in school, and is obviously still a dick.
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PaulT (profile), 18 Nov 2014 @ 7:34am

Re: Re: Re:
In your example, you intended to take a picture, but happened to miss the intended subject. That's a rather different thing to what he was saying, I think.

"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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Anonymous Coward, 18 Nov 2014 @ 7:35am

Mr Saban happens to be a major Dem party donor, about the same level as Adelson over in the GOP. Sure explains their leadership's love for IP maximalism
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Berenerd (profile), 18 Nov 2014 @ 7:41am

I was gonna say, it has to be photo shopped or they kidnapped the kid and made him wear that shirt. He looks totally not happy about a monkey on his back...err..shirt....
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PaulT (profile), 18 Nov 2014 @ 7:42am

Re: Re: Re: Re:
"prove you didn't intend to take it..."

deliberately.

I missed a word out, which might alter the meaning so correcting that here :)
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antidirt (profile), 18 Nov 2014 @ 7:42am

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?

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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Michael, 18 Nov 2014 @ 7:44am

Re: Re: Re:
If that is the case then there are a whole lot of copyrighted pictures that should be in the public domain.

Yes, there are a lot of pictures that should be in the public domain but are currently not.
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pegr, 18 Nov 2014 @ 7:49am

Re:
Man, are you late to this party.

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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PaulT (profile), 18 Nov 2014 @ 7:58am

Re:
My understanding:

"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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Bill Stewart, 18 Nov 2014 @ 8:21am

Issue is the trademark application, not the selfie
The monkey selfie's public domain status is by now established law :-)
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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Anonymous Coward, 18 Nov 2014 @ 8:41am

Re: Re: Re:
*You* still took the picture, not anyone else, so it's still yours.

The monkey took his own picture.
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radix (profile), 18 Nov 2014 @ 8:43am

It's an interesting question
For the famous Obama 'Change' poster, many here agreed that it was a transformative work (the original photographer didn't even recognize it at first). So heavy photoshopping can over-ride the original copyright as fair use.

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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radix (profile), 18 Nov 2014 @ 8:48am

Re: It's an interesting question
And yes, there's the issue of trademark vs copyright, but a copyrighted image used in commerce is the basis of trademark, so in some cases, they can be closely related. If this image is eligible for copyright, then it probably should be eligible for trademark.
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Pat, 18 Nov 2014 @ 8:54am

Question.
" please describe how much the lawyers are going to bill to sort this all out? "

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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Clem, 18 Nov 2014 @ 9:09am

Monkey Selfie
Strange that he's trying to claim trademark on a design that he hasn't physically put on anything - especially as I've had my design of the monkey on shirts for sale (physical examples as evidence in photos), for almost 2 months (see link)
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Clem, 18 Nov 2014 @ 9:10am

Re: Monkey Selfie
http://www.ebay.co.uk/itm/191391189828?var=&ssPageName=STRK:MESELX:IT&_trksid=p3984.m1555.l2 649
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Yes, I know I'm commenting anonymously, 18 Nov 2014 @ 9:25am

The lawyers will not try the public domain status of this selfie in court, precisely because it is most likely in the public domain. A court judgement would probably reduce potential future revenue: Profitability is of the utmost importance and must be guaranteed.
However, they would be happy to investigate if they can pursue any case for the Gap, either copyright or defamation..
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Jeffrey Nonken (profile), 18 Nov 2014 @ 9:37am

The Gap will sue in East Texas and will end up owning the shirt, the drawing, the photo of the monkey, the photographer, and the monkey. Ten minutes later they'll sue Techdirt for defamation and Marc Randazza will send a mocking letter. The Supreme Court will find it so funny they'll reverse the lower court's decision and also declare the monkey legally a person. The monkey will end up owning the photographer, the drawing, the Gap, and East Texas. However, the Gap's photo will be declared public domain and turn out to be responsible for encrypting a telephone with a song on it. It will be arrested by the RIAA arm of the NSA in a violent conflict involving Pennsylvania school campus police bearing M79 grenade launchers and M16 rifles and driving armored military vehicles. The photo will fight back by pointing a half-eaten bagel and making "Pew! Pew!" noises, killing 6 and hospitalizing 15.
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antidirt (profile), 18 Nov 2014 @ 9:40am

Re: Re:
"Is the new image fair use?"

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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DogBreath, 18 Nov 2014 @ 9:56am

Re:
Oh the humanity, dogs and cats living together, and oh yea... this.
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Michael, 18 Nov 2014 @ 10:00am

Re: Re: Re:
Non-humans cannot be party to a contract.
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Michael, 18 Nov 2014 @ 10:01am

Re: Re:
You have to feel a little bad for him.

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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Michael, 18 Nov 2014 @ 10:06am

Re: Re: Re:
On a law school exam, you can't assume the facts!

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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Michael, 18 Nov 2014 @ 10:09am

Re: Re: It's an interesting question
but a copyrighted image used in commerce is the basis of trademark

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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Michael, 18 Nov 2014 @ 10:13am

I think it is also very important to ask why the GAP would use such an awful image? Are they trying to sell V-Neck shirts to angry people? Do they think the angry guy in the picture will intimidate people into buying their clothing? Are they trying to tell us that if we dress in a shirt that is the same color as baby clothing that we will become angry?
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Anonymous Coward, 18 Nov 2014 @ 10:57am

How can the guys responsible for Power Rangers and Samurai Pizza Cats have fallen this far?
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Anonymous Coward, 18 Nov 2014 @ 11:17am

Re: Re: Re: Re:
This falls under a similar category as taking selfies with a stolen phone -- the phone belongs to someone else, but the copyright for the selfies belongs to the photographer. The issues here are:

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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Mason Wheeler (profile), 18 Nov 2014 @ 11:18am

Re: I think this legal question was answered in 1974
Do you have a lee-sonce for your minkey?
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Techanon, 18 Nov 2014 @ 11:28am

Re: Question.
My math is bad but I will try anyway: over 9000?
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radix (profile), 18 Nov 2014 @ 11:34am

Re: Re: Re: It's an interesting question
OK, so the bar for trademark is even lower than copyright.
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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Techanon, 18 Nov 2014 @ 11:35am

Re: Re: Monkey Selfie
You should consider contesting this trademark application then.
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Violated (profile), 18 Nov 2014 @ 11:45am

Re:
Copyright belongs to the one who pushed the button and not the one who encouraged the shot. Like a wife saying to he husband to take a photo when the copyright belongs to him and not her.

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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Uriel-238 (profile), 18 Nov 2014 @ 12:25pm

The monkey selfie...
...was one out of many pictures taken by the monkey while he had the camera. That was the good one out of dozens (if not hundreds).
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Clem, 18 Nov 2014 @ 12:25pm

Re: Re: Re: Monkey Selfie
How would I go about this?
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John Fenderson (profile), 18 Nov 2014 @ 12:50pm

Re: Re: Re:
A more correct analogy was if you left your camera sitting around somewhere and I picked it up and took a photo with it. You wouldn't have the copyright -- I would. If, however, I was not a human being then I wouldn't have the copyright. It would be uncopyrighted entirely.
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Anonymous Coward, 18 Nov 2014 @ 1:01pm

Re: Re:
You seem to assume that someone has to own the copyright. That's now how copyright works.

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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Blood Phoenix, 18 Nov 2014 @ 1:50pm

truth of copyright
The copyright no longer belongs to any of them because the Washington NFL team needs a new Mascot, and they've paid congress to write a bill allowing the use of this macaque to represent, inaccurately, their new Washington "Baboons". This is now property of the NFL and enforced by homeland security, and the budding new company, the photographer, and the chimp are all arrested and thrown in prison for copyright violation, sedition, and conspiracy to commit terrorism.
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Anonymous Coward, 18 Nov 2014 @ 4:49pm

Re: Re: Re: Re:
Don't bother.

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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PaulT (profile), 18 Nov 2014 @ 11:36pm

Re: Re: Re:
"On a law school exam, you can't assume the facts!"

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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Techanon, 20 Nov 2014 @ 6:20pm

Re: Re: Re: Re: Monkey Selfie
Consulting with a trademark lawyer, so he could guide you on that, should be the first step.
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Techanon, 20 Nov 2014 @ 6:28pm

Re: Re: Re: Re: Re: Monkey Selfie
After reading the updated post you might not need to do anything if Saban's real lawyers manage to disband the impersonators.
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camcall.me (profile), 20 Nov 2014 @ 9:43pm

irrelevant
Aside from faking the use in commerce pic, the copyright application is legitimate. Note it's not the original photo which is being copyrighted but a stylized likeness, which was made by a human somewhere, unless you believe the monkey proceeded to download the image it took and render it through a photo editor
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PaulT (profile), 21 Nov 2014 @ 1:17am

Re: irrelevant
You missed at least 2 of the original points, but well done for recognising that the point nobody made was wrong.
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