Inspector General's Report: Still Lots Of Problems At DOJ Agencies, Who I Now Have To Ask For Permission To See Documents

The Selfie Monkey Strikes Back: Lawyers Claim Of Course Monkeys Can Sue For Copyright

from the because-they-can't dept

Fri, Dec 4th 2015 7:39pm — Mike Masnick

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.

David Schwartz, the Irell & Manella lawyer who really is a lawyer, who actually graduated from Duke Law School and clerked for Judge Kozinski, then doubles down on the crazy by arguing that since copyright law was intended to benefit the public by creating incentives for creativity, it's obvious that they meant to cover monkeys.

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 copyright

Yes, 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.

Such a result is antithetical to the public interest, and hence, the intent of the drafters of the Copyright Act.

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.

20151204Plaintiff27sOppositiontoMTD (PDF)20151204Plaintiff27sOppositiontoMTD (Text)

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Filed Under: copyright, david schwartz, david slater, monkey, monkey selfie, naruto, ownership, public domain
Companies: blurb, irell & manella, peta

75 Comments

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Aaron Walkhouse (profile), 4 Dec 2015 @ 8:31pm

The one thing they are not saying, and dare not say aloud…
…is that they want legal "personhood" for an animal so they
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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Glenn, 4 Dec 2015 @ 8:40pm

I think "Naruto" has already been copyright'd... so they'll have to change its name.

(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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That One Guy (profile), 4 Dec 2015 @ 9:49pm

The punchline to the whole joke of a case of course is that between the photographer, PETA, lawyers and a monkey, the one who's acted in the most civilized and mature fashion is the monkey.
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Anonymous Coward, 4 Dec 2015 @ 10:24pm

Nice job, corporations, now even monkeys are on the road to having more rights than we do.
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Anonymous Coward, 4 Dec 2015 @ 10:28pm

monkeys can sue for copyright

i've lived too long.
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Lawrence D’Oliveiro, 4 Dec 2015 @ 10:43pm

If Monkeys Can Decide To Sue For Copyright ...
... then they can decide who can or cannot sue on their behalf, surely.

Was the monkey in question consulted about this case?
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Shadow Firebird, 4 Dec 2015 @ 11:26pm

I'm actually mildly in favour of the law treating nonhumans as persons in some circumstances.

But it doesn't, and to pretend it does is pretty dumb.
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Mark Wing, 4 Dec 2015 @ 11:56pm

If a monkey can get a law degree, then why can't one take photos?
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Lawrence D’Oliveiro, 5 Dec 2015 @ 1:14am

Re: mildly in favour of the law treating nonhumans as persons in some circumstances.
Humans have rights, but humans also have responsibilities.

What responsibilities would a monkey accept?
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ottermaton (profile), 5 Dec 2015 @ 2:36am

best defendant name ever
This article was worth reading if for nothing else than to see someone use the title "Defendant Blurb" with a straight face.
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Anonymous Coward, 5 Dec 2015 @ 3:45am

Re:
Don't be silly! Copyright ownership is one thing, but how can a monkey understand Power of Attorney?
We're doing this out of the infinite kindness of our hearts.

Sincerely,
PETA
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Anonymous Coward, 5 Dec 2015 @ 3:49am

Re:
Mature, maybe. But civilized, no way!
That monkey is a thief. Using other people's property without permission and then he has the gall to sue?
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royleith (profile), 5 Dec 2015 @ 3:55am

Ownership
Oh dear, I've come to the conclusion that David Slater does, indeed, have the copyright to the snapshot. But... later!

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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Anon, 5 Dec 2015 @ 4:54am

standing? slaves?
I don't understand why this case wasn't immediately thrown out for lack of standing. PETA claims to represent animals. If I were the judge I would demand to see that contract, if it exists.

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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That One Guy (profile), 5 Dec 2015 @ 4:55am

Re: Ownership
First, copyright is not property under the Constitution: it is a right. That's why it is called copyright.

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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Anonymous Coward, 5 Dec 2015 @ 5:13am

Slater holds the copyright. Otherwise, you are going to have to invalidate all sorts of other copyrights on pictures. For example, a person can use a motion trigger to take pictures of lightning, water drops, bullets going through pop bottles, etc. Are those automatically public domain? That's just silly. If the photographer sets up the conditions by which is a photograph is taken, that should make the copyright his. Pressing the button is only one tiny fraction of taking a photograph.
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Anonymous Coward, 5 Dec 2015 @ 5:32am

This lawsuit is so ridiculous that the court should dismiss it. Nobody has any grounds to sue anyone over the copyright. PETA is trying to snatch the copyright of the selfie because they decided "we are an animal rights group and we need a new funding source".

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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That One Guy (profile), 5 Dec 2015 @ 5:35am

Re:
See my comment, and Slater's quote in it, above. He set up nothing, his carelessness and good luck was the source of the pictures, not any planning or intent on his part.
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Anonymous Coward, 5 Dec 2015 @ 5:45am

Re:
A photographer, a PETA person, a lawyer and a monkey walk into a bar ...
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Anonymous Coward, 5 Dec 2015 @ 5:46am

Re:
Monkeys are people my friend
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Anonymous Coward, 5 Dec 2015 @ 5:47am

Re:
There are plenty of them in congress, and they fling shit at each other on a daily basis.
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Techanon, 5 Dec 2015 @ 5:59am

Re:
Don't be silly, monkeys always had more rights than us. Who do you think run the corporations?
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Anonymous Coward, 5 Dec 2015 @ 6:07am

It is all fun and games until that monkey rips someones face off. Which is inevitable considering the company he keeps. Jacket and necktie or no he is still a wild animal. Government granted monopoly... sounds about right to me.
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Anonymous Coward, 5 Dec 2015 @ 6:11am

Wrong monkey
Naruto has blue eyes. Does no one watch anime anymore?
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Anonymous Coward, 5 Dec 2015 @ 6:55am

Re: Ownership
David Slater was half way there.

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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Anonymous Coward, 5 Dec 2015 @ 6:59am

That might get some traction though. WE have laws being passed saying corporations are people in regards to some aspects of the law. Grease the right palm and they might get a ruling they want.
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Anonymous Coward, 5 Dec 2015 @ 7:39am

All this idiotic bickering about copyright, permission and money when the monkey doesn't give two flying craps about any of it.
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Anonymous Coward, 5 Dec 2015 @ 7:57am

I dunno about this ...
...give the monkeys copyright and next thing they'll be clamoring for is the right to vote. Then again, that *would* rather increase the voting participation numbers here in the US, wouldn't it.
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Maurice Ross, 5 Dec 2015 @ 7:57am

PETA Suit
I practice copyright law and am considered an expert at 30 years of practice. I usually agree with your posts but this time I believe you are clearly wrong. These photos qualify as original works of authorship. That is clear. The only issue is whether there is an author and who the author is. I see no reason why a monkey cannot be an author. Monkeys have cognitive skills similar to grade school students. They communicate with language--their own and human. So they can be authors of photos. The only difficult issue is who owns the photos and who has standing to sue. The law treats animals as property much like minor children. 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. This is what the law provides. And with respect, copyright is a right created by Congress under constitutional authority. Further, I see no public interest in causing the photos to be in the public domain. Why not use the license fees to provide a healthy life for the monkey? Perhaps over time he will learn to take more photos which could be invaluable to scientists studying cognitive functions.
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OldMugwump (profile), 5 Dec 2015 @ 8:02am

Re: Re: mildly in favour of the law treating nonhumans as persons in some circumstances.
Marked insightful.

At least one court agrees - see http://www.wired.com/2014/12/court-says-chimp-not-a-person/

From that:
...said the court, rights are contingent upon responsibility. If a chimp can’t be expected to fulfill his social duties, neither can he have rights.

“Unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions,” wrote the judges.

“In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights—such as the fundamental right to liberty protected by the writ of habeas corpus—that have been afforded to human beings,” they concluded.
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Anonymous Coward, 5 Dec 2015 @ 8:38am

Maurice, the problem with that is that PETA is not acting in anyone's best interests. They merely saw an opening to try and wrest copyright over the image because they think they are entitled to act in the interests of this monkey. Animals have no rights because they are not seen as people. Not only that, but they can't prove which monkey grabbed the camera. There are simply no unique characteristics.

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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Guardian, 5 Dec 2015 @ 8:49am

100% way to solve this!!!!!
tell them to bring in the alleged monkey and ask him in the court and when he dont answer , have him put n contempt and toss the case out with prejudice.....

then rule on whom owns said copyright
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petapetatoday, 5 Dec 2015 @ 8:55am

anyone else got the sudden urge to eat 50 hamburgers now
ummmmmm burgers
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jupiterkansas (profile), 5 Dec 2015 @ 9:34am

Re: Ownership
Copyright isn't property or a right. It is a privileged granted by the government. Copying is a right - something people do naturally and have done since the dawn of time - and copyright law is an infringement of that right.
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jupiterkansas (profile), 5 Dec 2015 @ 9:39am

Re: PETA Suit
(please be joking... please be joking... please be joking...)
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MondoGordo (profile), 5 Dec 2015 @ 10:04am

Money's are people too !!!
Actually this may be a backdoor attempt to get person-hood for monkeys ... there has been an effort to get higher primates recognized as "persons" that has been shot down multiple times. If these PETA crazies can get a court to rule that Naruto owns the copyright it sets a legal precedent that can be used as a lever to get a court to agree that the higher primates are "people".
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MondoGordo (profile), 5 Dec 2015 @ 10:04am

Money's are people too !!!
Actually this may be a backdoor attempt to get person-hood for monkeys ... there has been an effort to get higher primates recognized as "persons" that has been shot down multiple times. If these PETA crazies can get a court to rule that Naruto owns the copyright it sets a legal precedent that can be used as a lever to get a court to agree that the higher primates are "people".
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Shawn, 5 Dec 2015 @ 10:08am

Question?
Does the monkey in question currently or formerly reside within the United States? And if not, at what point did the monkey in question come under US law?

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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Cornelius, 5 Dec 2015 @ 10:27am

We Have Our Own Lawyers
You human lawyers have no standing to sue on our behalf, so you can get lost.
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Michael Barclay, 5 Dec 2015 @ 10:36am

Retainer Agreement?
I want to see the retainer agreement between Irell & Manella and the monkey.
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Anon, 5 Dec 2015 @ 11:52am

Composed
Copyright is the privilege or right to control the original and creative output of your efforts.

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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Anonymous Coward, 5 Dec 2015 @ 12:56pm

Re:
It occurs to me that the name "Naruto" is an expression of our male-dominated, western imperialism imposed on our non-human cousins. One would expect PETA to be more sensitive to their feelings. </sarcasm>

(Yes, I know "Naruto" is the name of a Japanese anime character.)
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Anonymous Coward, 5 Dec 2015 @ 2:08pm

The Monkey's only an animal - NOT human!
What's with you people ascribing human thought, planning, and awareness to a lower primate who possesses NONE of these characteristics. (S)He's a MONKEY fer pete's sake. I agree this whole thing is an attempt to cash in on the result of the photographer losing control of his equipment. However, in no way can one apply human thought and planning to the taking of that image. The poor monkey likely dropped the camera as soon as it went off. It originally just picked it up and started poking around until it fired, 'cause it was bright and shiny and small, and (s)he was curious.
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Ed, 5 Dec 2015 @ 3:15pm

Jury of his peers
May I suggest that Naruto's interests would best be served if this case were tried by a jury of his peers.
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Mark Wing, 5 Dec 2015 @ 3:21pm

Maurice makes a compelling point. I'm not an animal lover to the point of being militant about it like PETA, but it's hard not to feel a little empathy for the monkey. Why shouldn't that monkey see some benefit from his fame? Throw the little fella a fleece blanket and a few pounds of bacon for chrissakes. Hold all the money in trust and make sure it all goes to the monkey. I'd be OK with that.
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Zem, 5 Dec 2015 @ 3:49pm

Some one needs to start a kickstarter campaign on behalf of the real monkey. PETA must be held to account for attempting to rob this monkey of their rights!
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Anonymous Coward, 5 Dec 2015 @ 3:54pm

Re:
The monkey is making a monkey out of everyone else here.
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Karl (profile), 5 Dec 2015 @ 5:12pm

Re: Re: Ownership

First, copyright is not property under the Constitution: it is a right. That's why it is called copyright.

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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That One Guy (profile), 5 Dec 2015 @ 6:12pm

Re: Re: Re: Ownership
Interesting, thanks for the clarification/extra info.
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Anonymous Coward, 5 Dec 2015 @ 6:46pm

Abolish Copyright
End all the monkey business.
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John Pettitt (profile), 5 Dec 2015 @ 8:11pm

public domain
If the authors of copyright law really didn't believe in the public domain copyright would be perpetual.
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Mike Masnick (profile), 5 Dec 2015 @ 10:55pm

Re: PETA Suit
I see no reason why a monkey cannot be an author.

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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Karl (profile), 5 Dec 2015 @ 11:28pm

Re: Re: Re: Re: Ownership
clarification/extra info

I think you might have misspelled "pedantic nonsense." :)
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royleith (profile), 5 Dec 2015 @ 11:35pm

@ That One Guy & Maurice Ross

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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Anonymous Coward, 6 Dec 2015 @ 12:15am

Re: Re: PETA Suit
Maurice isn't joking, but he's still a massive douche. Maurice Ross has been posting comments on FightCopyrightTrolls and DieTrollDie in defense of Prenda and Malibu Media. His "practicing copyright" is to protect niche gay music that he never cites the names of.
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BW (profile), 6 Dec 2015 @ 8:14am

Only if we let them. Support https://movetoamend.org/
Support the public groups, there are several, that are working to overturn the "Citizen's United" case.
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Anonymous Coward, 6 Dec 2015 @ 8:58am

Copyfree is illegal??
Monkey go crazy, dance, jump, run to get banana.

Lawyer go crazy, dance, jump, run to get dollar.

Nature of beast.
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Michael, 6 Dec 2015 @ 9:16am

Re: Re:
The photographer says: "I own everything that I see"
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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Anonymous Coward, 6 Dec 2015 @ 10:07am

Re:
You're asking PETA to have...shame? Good luck.
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GEMont (profile), 6 Dec 2015 @ 1:46pm

Dancing in a row boat!
One afternoon, while walking in the park near my house, I set down a sheaf of sketch papers on the bench next to where I was sitting, so I could peel back the opening on the lid of my coffee, and a seagull shat upon my sketch paper.

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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GEMont (profile), 6 Dec 2015 @ 1:49pm

Re: Dancing in a row boat!
"...while walking in the park near my house..."

Of course that should have been "sitting" in the park near my house...

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Pixelation, 6 Dec 2015 @ 3:53pm

Next up...
The monkey gets a patent for a sytem and method for flinging poo.
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That One Guy (profile), 6 Dec 2015 @ 7:05pm

Re: Next up...
... only to forget to include 'on a computer/with the assistance of a computer' and have the patent submission denied, with the examiner pointing to the entire field of politics as 'prior art'.
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drewdad (profile), 7 Dec 2015 @ 8:12am

Silly and wrongheaded
"Every copyright must have an author" != "Every authored work must have copyright."
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Anonymous Coward, 7 Dec 2015 @ 4:53pm

Re: PETA Suit
First porn trolls, then gay music, then monkeys. You're really going downhill, Sorry Morry. You're a fucking class act.
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Andres (profile), 8 Dec 2015 @ 12:49am

European copyright law applies
I've said this several times, American copyright law doesn't apply to the subsistence of copyright in this instance. The picture was taken in Indonesia, and the photographer is a UK national, so this case should fall mostly because of the jurisdiction issue. The Copyright Office's statement is not valid whatsoever.

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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Andres (profile), 8 Dec 2015 @ 12:53am

Re: Re:
He did setup the camera so that the monkey could take pictures, but most importantly, he selected the pictures afterwards, the monkey took 300 or so.

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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AC720 (profile), 8 Dec 2015 @ 1:52am

The monkey can author this photo but he has no rights and is not a citizen and therefore he isn't entitled to a copyright. But since the other parties in this didn't take the photo, they are also not entitled to claim copyright. They didn't make the photo. The monkey did, but he can't own it. So nobody can.

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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Anonymous Coward, 8 Dec 2015 @ 4:46am

Re: European copyright law applies
There's a good legal argument to be made that the photographer owns the copyright of the selfie

No really, and that joke is getting old.
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Andres (profile), 8 Dec 2015 @ 9:35am

Re: Re: European copyright law applies
Do you have any legal argument for that assertion? My claim is that in Europe whoever presses the button is irrelevant for copyright purposes.

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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Anonymous Coward, 8 Dec 2015 @ 9:47am

There is precedent for animals having human rights. (a counter argument)
Police dogs are sometimes treated as law enforcement officers for the purposes of prosecuting suspects who shoot them.

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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Wendy Cockcroft, 9 Dec 2015 @ 8:03am

...copyright law was intended to benefit the public by creating incentives for creativity...

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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John, 10 Dec 2015 @ 1:56pm

Masnick is once again wrong
Masnick is becoming obsessed with the idea that Slater claims his monkey "took" the image and therefore there is no copyright claim because the USCO says so.

"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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Anonymous Coward, 4 Jan 2016 @ 9:12pm

Re: Masnick is once again wrong
Log back in, Whatever. You're not fooling anyone.
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The Wanderer (profile), 17 Jan 2016 @ 8:27am

Re: Re: Re: Ownership
At a glance, what you label as "claim rights" vs. "liberty rights" sounds like the same distinction as what Ken White (of Popehat) refers to with the terms "positive rights" (the right to have someone else do something) and "negative rights" (the right to have someone else not do something).
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