The Selfie Monkey Strikes Back: Lawyers Claim Of Course Monkeys Can Sue For Copyright
from the because-they-can't dept
The monkey selfie story is the gift that keeps on giving. When we last left the monkey, who PETA insists goes by the name "Naruto," the website Blurb and the didn't-take-the-monkey-photos-photographer David Slater had both pointed out to the court the simple fact that monkeys can't sue for copyright infringement and the lawsuit that PETA filed on behalf of the monkey was completely ridiculous. If you don't recall, these monkey selfies are unquestionably in the public domain, even if Slater still argues that he holds the copyright on them. He didn't take the photos, as his own statements indicate, and thus the photos are in the public domain (longer explanation at that link). But the idea that the monkey might own the copyright is something that Slater and I completely agree on: it's not even in the realm of possibility. Until PETA sued it was only in the realm of satire.Anyway, PETA's lawyers at the (formerly) prestigious law firm of Irell & Manella have struck back with a filing defending the lawsuit, which they insist is, like, totally real and legit. Which it's not. That Irell & Manella would let itself get played by PETA for a stupid publicity stunt that serves no purpose other than to waste the court's time, really speaks poorly of that firm. Their argument is based on the silly idea that "well, someone must own it, and thus, it should be the monkey." This is wrong on both points, but we'll get there. First, the argument:
This case presents an issue of first impression: Whether human authorship is required for protection of works under the Copyright Act. There is no dispute here that Naruto took the photographs spontaneously and without human assistance. In every practical (and definitional) sense, he is the “author” of the works. Defendants argue that animals have no standing under the statute—that they cannot be “authors.” Yet none of the Defendants suggests that they have any entitlement to ownership of the works. Defendant Blurb implies that any work created by an animal falls into the public domain; Defendant Slater does not argue here that he owns the copyright. These positions are both inconsistent with other statements made by Defendants and wholly inconsistent with the premise of the Copyright Act—every copyright must have an author. And both Blurb and Mr. Slater ignore the fundamental question posed here: Does the Copyright Act permit Plaintiff’s ownership of the works or give him standing to assert claims under that statute? The answer to both questions is “Yes.”This is wrong on multiple levels. First, even though I totally disagree with him, Slater claims that he holds the copyright. He's also been creatively revising his story since it first came out to suggest that he played a larger role than originally implied in getting the monkey ("Naruto" or not) to take the photo. Second, this belief that (a) there must be a copyright and (b) someone must hold it is wrong. As we've discussed, this is a bit of dangerous thinking, that every bit of cultural output must be "owned" via copyright law. But that's not what the law says at all. It is entirely possible for new works to be created that are in the public domain, and this is clearly one of them.
As for the idea that a monkey can hold the copyright, that has long been debunked. We've said it a bunch of times already, but the Copyright Office itself has made it clear that a work must be created by a human being to be eligible for copyright.
The text of the statute itself does not compel the conclusion that authorship may be vested exclusively in humans. To the contrary: Since enacting the Copyright Act of 1790, Congress and the Supreme Court have instructed that the copyright laws should be interpreted liberally in order to safeguard the “general benefits derived by the public” from works of authorship.... Copyright protection advances that goal by allowing authors to “disclose” their works without losing control of them.Think about this for a second. He's trying to claim, first, that Naruto the monkey (who many people dispute even took the photo), not only put such creative thought into the "authorship" of the photo, but also that the monkey requires the exclusivity provided by copyright to properly incentivize the production of the photograph.
Just what kind of monkey crap is that? Copyright law is an incentive to create and then, yes, to distribute. But the monkey doesn't need such an incentive. The monkey was not and is not thinking "gee, if only I could protect this image, well, that's a reason to take this photograph." It's a monkey.
Every copyright must have an “author.” If there is no author, there is no copyrightYes, and the courts have long recognized that an "author" is a human. Thus, you've just made the case that there is no copyright here. Because there isn't. The photograph is in the public domain.
A key part of PETA's argument that copyright holders don't need to be people is... that corporations can hold copyrights:
In allowing both corporate authors and anonymous authors, the Copyright Act stands in stark contrast to how Congress decided to provide for other intellectual property rights, such as patents. Under the Patent Act, the “inventor”—i.e., patent law’s equivalent of a copyright “author”—specifically excludes corporations and other non-natural persons.... Thus, if Congress wanted to exclude non-human authorship rights, it knew how to do so and would have enacted parallel features into the Copyright Act.It seems unlikely that this argument will go very far.
Finally, the lawyer seems to argue with a straight face that the public domain is antithetical to the concept of copyright by saying it's impossible to imagine that Congress wanted to support the public domain when it created copyright law. Really.
Without an author, there can be no “fixation,” no “work of authorship,” and thus, no copyright.... Thus, if an animal cannot be an “author,” then any work which “owes its origin” to an animal will not have copyright protection.Um, no. That's not antithetical to the public interest at all, unless you believe that the drafters of the Copyright Act didn't believe in the public domain, which they clearly do. The motion was written by someone who appears not to know the first thing about actual copyright law and the concept of the public domain. Again, this is a total embarrassment for Irell & Manella -- a firm that is engaged in lots of big copyright cases. Everyone knows that PETA plays stupid publicity stunts. But for an actual high profile law firm to make arguments like these is an embarrassment.
Such a result is antithetical to the public interest, and hence, the intent of the drafters of the Copyright Act.
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Filed Under: copyright, david schwartz, david slater, monkey, monkey selfie, naruto, ownership, public domain
Companies: blurb, irell & manella, peta
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The one thing they are not saying, and dare not say aloud…
can exploit all animals for profit and for their cult's power.
If they actually admitted it the lawsuit would end right
there; so they try to trick a court with this sideways
alternative approach. Hopefully the defendants or the
court will call their bluff, expose their game and end it.
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(Dear PETA, only humans can actually copyright something. Now, has that monkey signed the necessary forms giving you Power of Attorney?)
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Re:
We're doing this out of the infinite kindness of our hearts.
Sincerely,
PETA
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(Yes, I know "Naruto" is the name of a Japanese anime character.)
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That monkey is a thief. Using other people's property without permission and then he has the gall to sue?
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Re: Re:
The lawyer responds: "You will need to pay me to defend that statement"
The PETA person says: "the Monkey saw it all first"
and the Monkey says: "isn't it funny that I'm the only one NOT flinging shit today?"
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Only if we let them. Support https://movetoamend.org/
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i've lived too long.
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If Monkeys Can Decide To Sue For Copyright ...
Was the monkey in question consulted about this case?
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But it doesn't, and to pretend it does is pretty dumb.
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Re: mildly in favour of the law treating nonhumans as persons in some circumstances.
What responsibilities would a monkey accept?
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Re: Re: mildly in favour of the law treating nonhumans as persons in some circumstances.
At least one court agrees - see http://www.wired.com/2014/12/court-says-chimp-not-a-person/
From that:
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best defendant name ever
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Ownership
First, copyright is not property under the Constitution: it is a right. That's why it is called copyright.
Irell & Manella are wrong to state 'Defendant Slater does not argue here that he owns the copyright'. Nobody owns the copyright: one can only have, or not have, the right to copy.
If a wildlife cameraman sets up a camera with an infra-red detector and catches a picture of a fox, there is nothing that passes the low hurdle under copyright law of creative expression.
If David Bailey sets up a studio shot, poses the model, has the lighting and flash set up to his satisfaction, chooses the ISO setting and shutter speed and gets an assistant to click the shutter, that does leap the creative hurdle and David Bailey has the copyright to the image.
David Slater was half way there. He set up the camera, settings, backdrop, flash, iso, etc (some of which might have been the cameras automatic doing) and then arranged for the model to operate the shutter once in a suitable pose. Since the 'creative' hurdle is so low under copyright law, I cannot see how David Slater does not have the right to prevent others copying his creative expression.
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Re: Ownership
No, it is not. Copyright could be determined to be detrimental to the public good and rendered void tomorrow, and not a single right would be lost. Free speech is a right, privacy is a right, freedom of/from religion is a right, but a government granted monopoly is not a right.
David Slater was half way there. He set up the camera, settings, backdrop, flash, iso, etc (some of which might have been the cameras automatic doing) and then arranged for the model to operate the shutter once in a suitable pose. Since the 'creative' hurdle is so low under copyright law, I cannot see how David Slater does not have the right to prevent others copying his creative expression.
Probably because that's not what happened. According to his own description of the event, the picture was entirely accidental, in that he unintentionally left his camera within reach of the monkeys, they investigated it, and (luckily for him), pressed the right button instead of taking it or smashing it to pieces.
Here's how Slater described the events that led up to the photos:
'One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy, said Slater, 46.
'At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection.
'They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button.
'The sound got his attention and he kept pressing it
'At first it scared the rest of them away but they soon came back - it was amazing to watch.
'He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn't worked that out yet.
'I wish I could have stayed longer as he probably would have taken a full family album.'
He didn't 'set up' anything, if anything he 'screwed up', and lucky for him he got some photos out of it rather than a smashed camera.
The kicker of course is that his description of the events is both a boon, and a bane to him. A photo of a monkey isn't terribly interesting, as there's plenty of those, what makes this one of note is that it was taken by the monkey in question, and completely by accident. However, that same fact is also what keeps him from having any rights over it, since he was neither the one who took the shot, nor the one who orchestrated it's creation other than carelessness.
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Re: Re: Ownership
No, it is not.
Actually, in the legal sense, it is a right. It is the type of "right" that is usually called a "claim right" (a right that creates obligations in others to actively support that right, e.g. the right to a public education) rather than a "liberty right" (a right to act without interference, e.g. the right to free speech).
It is simply not a "right" under the colloquial definition. Colloqually, we say that something is a "privilege" if it is created by an authority (like a government, school, or employer), but a "right" is innate and inviolable, held by the virtue of being a person (e.g. "human right").
So, copyright is a "privilege" in the colloquial sense, and a "right" (specifically a "claim right") in the legal sense. And, the things you mentioned - free speech, privacy, freedom of/from religion - are "rights" in the colloquial sense, and "liberties" in the legal sense.
The rest of the comment is pretty much spot-on.
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I think you might have misspelled "pedantic nonsense." :)
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Re: Ownership
And pissed because the best photograph ever taken by a camera he owned was one of hundreds taken by accident by a monkey.
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Re: Ownership
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standing? slaves?
Secondly, take this argument back to 1850. Would the Supremes rule that a slave can hold 3/5 of a copyright?
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This is important because in European copyright law selection is enough to warrant originality as per Infopaq case in the CJEU. Slater is a UK national.
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WTF?
PETA should be ashamed of itself for even bringing this lawsuit since they weren't even any of the parties involved with the photo. Slater and the monkey are the only two parties with standing to bring a copyright lawsuit and animals simply cannot bring lawsuits, even if attorneys get involved. Slater shouldn't get the copyright, because he didn't take the picture, the monkey did.
PETA is simply setting themselves up as the public court jester that everyone laughs at but nobody takes seriously, as this lawsuit is quickly showing everybody. PETA and the law firm involved with bringing this lawsuit, have become the laughing stock of the online community. I wouldn't hire that law firm even if they were the only ones available.
To bring such a silly ass fucking lawsuit is so ridiculous that the courts need to laugh them right out of the court.
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Wrong monkey
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I dunno about this ...
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PETA Suit
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Re: PETA Suit
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Re: PETA Suit
Copyright law has been stated to apply to humans for basically all of its history.
The only difficult issue is who owns the photos and who has standing to sue.
Again, you are making the false assumption that the rights in the photograph need to be owned. That's wrong.
Thus, the owners of the monkey own the copyright and hold it in trust for the benefit of the monkey. This is not crazy or silly.
Yes, it is. That is neither what the law says or how it has worked.
Further, I see no public interest in causing the photos to be in the public domain.
Really?!? Having the photos in the public domain allows the public to make use of them, to create new works, to enjoy the photographs. That's the entire point of the public domain. Your argument suggests you don't see any value in the public domain at all.
Why not use the license fees to provide a healthy life for the monkey?
Because the entire point of copyright law is to provide incentives to create. Do you honestly think the monkey thought "gee, I need exclusive rights to make this photograph"?
Perhaps over time he will learn to take more photos which could be invaluable to scientists studying cognitive functions.
I'm beginning to think your comment is satire and I fell for it...
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Re: PETA Suit
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Not only that, but if PETA are somehow successful, than Slater can sue PETA for the usage of his camera being used to take the picture. PETA seems to think its entitled to do this and that's wrong. Fact is, Slater's camera was used to take the picture and it's quite obvious that the picture is in the public domain.
Animals do NOT have a legal right to own anything, they are not people and do not have the protections of the constitution nor copyright law. The courts should not rule in favor of PETA, if they do, they should then rule that even though PETA can have the copyright that the copyright is in the public domain.
There's also a hickup. The United States Trademark and Patent Office has ruled that animals cannot own the copyright to anything, which would make whatever decision the courts make to be a violation of the USPTO's policy's and they are a government agency.
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100% way to solve this!!!!!
then rule on whom owns said copyright
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anyone else got the sudden urge to eat 50 hamburgers now
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Money's are people too !!!
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Money's are people too !!!
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Question?
The reason I ask, is that if the monkey is not a US resident and lives in another country, why would this not be fought out in that country's courts.
It should not matter if the camera is the property of a US citizen, just like it wouldn't matter if i wrote a novel with a typewriter loaned to me by a citizen of France.
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We Have Our Own Lawyers
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Retainer Agreement?
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Composed
Since Slater admits the photos were an accident, not something he set up, then he cannot be the "author". I guess a similar issue would occur if the camera were caught in a landslide and the pieces of debris string the shutter button took pictures... no intent. A camera with a remote or a movement trigger, deliberately set up, is intent.
To my mind, this picture is like Yosemite's el Captain, or the Andromeda Galaxy, or a twisted piece of driftwood, or wood grain, or a vine climbing a wall. There is beauty in the accidents of nature. An artist can own copyright to a sculpture, but not to a random piece of driftwood.
The local taxidermist cannot sue the next person who has a pair of deer antlers or longhorns that look like the ones he just mounted. The first person to produce footsteps across a sand dune does not own the copyright to that sculpture. Not *everything* is copyright, nor should it be. The products of nature should be public domain, even if humans accidentally intervened somehow to generate the result.
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The Monkey's only an animal - NOT human!
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Jury of his peers
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Abolish Copyright
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public domain
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As Maurice will know, 17 USC says 'Copyright protection subsists... in original works of authorship fixed in any tangible medium of expression'.
It explains that the intention of the limited monopoly on copying is:
'(A) To maximize the availability of creative works to the public.'
'(B) To afford the copyright owner a fair return for his or her creative work and the copyright user a fair income under existing economic conditions.'
As That One Guy points out, the production of the photos was accidental. David Slater never planned for the monkeys to take their selfies and neither did the monkeys: it was not a creative work of authorship and does not qualify for copy protection under the law.
PS: 17 USC § 801 uses the phrase 'copyright owner' which seems to allow for the 'ownership' of a legal right under the law.
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Copyfree is illegal??
Lawyer go crazy, dance, jump, run to get dollar.
Nature of beast.
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Dancing in a row boat!
At first I was disgusted, but then I noticed that the dropping had miraculously formed a very obvious picture and after a few minutes I determined that it looked exactly like Jesus, dancing in a row boat.
Should I get a copyright for this image on behalf of the bird, so that no unscrupulous persons can steal the resulting "image" and profit unfairly thereby, depriving the bird of his/her fair return?
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Re: Dancing in a row boat!
Of course that should have been "sitting" in the park near my house...
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Next up...
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Re: Next up...
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Silly and wrongheaded
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European copyright law applies
There's a good legal argument to be made that the photographer owns the copyright of the selfie, as in European copyright law the person who pressed the button is irrelevant, what matters is that an author expresses his/her personality through selection and arrangement of the photograph.
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Re: European copyright law applies
No really, and that joke is getting old.
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Re: Re: European copyright law applies
The CJEU has ruled in several cases that the arrangement and selection is what matter when it comes to originality (Infopaq, Football Association v Murphy), and in pictures in particular what matters is that the photo encapsulates a 'personal touch' reflecting the personality of the photographer (Painer v Standard Verlags).
If pressing the button was what matters, then we could not have copyright over automated triggers and delayed photography.
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By the way, this whole system is going to cause a mess if or when a space alien (Have to use Space alien instead of just alien in case people think I mean like from Somalia) lands and begins distributing bible tracts. A space alien has no rights to patent or copyright or indeed to property at all, so there won't be anything stopping some human from walking over and claiming they own the alien, his or her ship, and of course the bible tracts. The alien won't be able to defend themselves under our laws. But perhaps their ray gun may be a good defense.
Similarly if or when human make it to other planets, we have no rights to claim we own it. And especially if the planet has life forms, we have no right to trespass, take samples, plant flags or claim ownership or start naming things, mining for materials, etc. Other beings would already have property rights.
And as well, since humans have no ownership of any bodies in the Sol system, if aliens decided to settle on Mars, we'd have no grounds to object -well we have no ability to stop it anyway but Mars doesn't belong to us.
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There is precedent for animals having human rights. (a counter argument)
So the law DOES cross the line. The question is whether it crosses the line both ways. Animals have human rights if they are agents of state, but do they if they aren't?
The dangerous bit here, is if they find against the Monkey, could that precedent then be used to argue against human rights for the mentally handicapped? Does the court destinguish based on IQ, or genetics? Probably the decision will just say: "because God and this court said so", in a slightly more polished vernacular.
IMHO many of the issues discussed by the outstanding Journalists here at Tech Dirt, tend to draw into question the wisdom of stare decisis. While this particular case seems silly, decisions cascade in our court system. So what follows is as important as what happens.
Either way I'm for the Monkey. I leave it to you to figure out which one I'm referring to.
As an aside; it is worth considering if stare decisis is deprecated. Perhaps if Aaron Schwartz was still alive he would poke a couple of big databases of judicial decisions with an algorithm and tell us. Is random corruption, less corruption than systemic corruption? Perhaps a good thesis question for an Econ major.
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Now that the intent has been successfully twisted to benefit the rightsholders by creating incentives for rent-seeking, the only creativity is in how to present an argument for a monkey to own property so that PETA can then claim power of attorney over the copyright revenues and take the money for themselves.
This is why I'll never shut up about copyright not being property. Thinking about it in those terms is the root of this issue and it won't go away till we have gained control of the narrative and pointed out what a huge lie this is.
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Masnick is once again wrong
"Taken" is colloquial for pressing the button, but authorship, upon which copyright is based, is a legal term for the intellect behind the photograph. If it is my intention to have a monkey press abutton on my camerea or trip my remote trail cam, then I am the author.
The USCO are now just a bunch of bandits being paid by Wikipedia. Thankfully, as PETA realise, the USCO comment in its own office guidleines is just opinion rather than law, and in this case comes 3 years or more after the the monkey selfies were authored.
Yet Masnick and others reman obsessed with the USCO line about monkeys "taking" photos as "works of nature". Since when is a camera a work of nature? Since when is publishing a work of nature? Monkey photographers are not works of nature because they are non-existent. Monkeys cannot process images and publish. Humans do this. Monkeys can't take photographs without human intervention, and that intervetion confers the human as the author.
Slater clearly states that a monkey pressed the button (or "took" the photo in colloquial language) after he set the camera up, just as any hunter or wildlife tog does when setting up a trail camera.
This set-up is most certainly a valid claim for copyright because Slater was the intellect behind the image. This is US law, not Indonesian or UK or Martian. USA. It's 1st Amendment stuff.
Masnick knows this all to well but he would rather invent the idea that Slater changed his story, preferring to "victim-shame" as Andrew Orlowski of "The Register" points out.
I have used the archive site to once and for all prove that Slater's story is unchanged. Slater makes repeated refs about a tripod and cable release being purposefully set up for said monkey to toy with. For example The Guardian of July 5th 2011 (I realise that the freetards on this site like references to be quoted if it comes as something as a surprise to them).
Freetards believe newspapers are factual and as such are the enemy of a free-thinking, truth-seeking society. Freetards even write for these newspapers with their BS and bias. They invent quotes and distort facts to push agendas.
The ideaolgy of Masnick (for which I guess he gets paid in kind somehow)is one where the photographs he wants to varnish upon his own website, to promote his own store and prestige, should be free for him to use, as it should be for his paymasters.
Masnick clearly has no talent to take photographs of his own judging from this site. He and the freetards love the idea of a public domain whereby one can use the works of others for financial self-benefit.
His support of public domain is perverse because it does not whatsoever promote any artist from producing work in the future.
Freeloaders like Masnick are the reason why artists are shuning the internet to publish. Thumbnails will become the norm and contracts will become crucial and more complex for those who wish to use images on their sites.
The public domain only serves the artistically bankrupt sector of society, or the sector that believes anything on the internet should be free to exploit for personal gain. There will be a backlash to public domain that punishes creativity and sharing.
Photographers, authors, musicians, painters, actors, are all realising fast that there are Masnicks about and will stop publishing or producing without contracts and without grossly intrusive watermarks.
The internet will become the sole repository of boring.
Public domain is to the detriment of society.
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Re: Masnick is once again wrong
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