The Selfie-Taking Monkey Who Has No Idea He Has Lawyers Has Appealed His Copyright Lawsuit

from the satire-is-dead dept

Welp. Here we go again. For many, many years, we've been tracking the insane legal situation of the selfie-taking monkey, whose name we were told only recently is "Naruto." Early on in this saga, back in 2011, our focus was on how the photographer whose camera was used, David Slater, had no legitimate claim to the copyright in the image, in large part because the copyright goes to whoever took the photo, and the copyright cannot go to a monkey, because copyright law is limited to "persons." Every so often Slater would pop up somewhere or somehow and yell about this -- twice representatives of his even threatened us with completely bogus legal action.

However, things took a turn for the even more bizarre a year ago when PETA, an organization that sometimes appears to focus more on professional trolling rather than on the "ethical treatment of animals" as its name suggests, claimed to represent the monkey (Naruto!) and sued Slater himself for falsely claiming the copyright. While we agree that Slater doesn't hold the copyright, neither does the monkey, because no one holds the copyright.

Amazingly, PETA, claiming to represent the interests of an Indonesian monkey, somehow secured the services of a really big name law firm, Irell & Manella, whose name should always be associated with the fact that it took this insane case. Irell & Manella (again, somehow, this is considered a respected law firm) took the nutty position that there must be a copyright in the image, and thus the monkey deserves to get it. It completely ignores the fact that not everything gets a copyright. It's as if the lawyers at Irell & Manella don't even understand how copyright law works.

The judge in the case made quick work of this and confirmed, as pretty much everyone already recognized, that a monkey can't have copyright. But, this is PETA, and PETA won't give up until the trolling has completed its course. So it appealed and it has now filed its opening brief.

I have no idea if David Schwartz at Irell & Manella is doing this pro bono or actually wasting PETA's money here, but if I were a PETA supporter/donor, I'd be pissed off that this is the way the organization is burning money:

The Constitution authorizes Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. art. I, § 8, cl. 8. Neither the Copyright Clause nor the Copyright Act contains on its face a limitation solely to authors with human attributes or characteristics. The district court erred in carving out such an exemption here. It is not necessary—indeed it is antithetical to the purpose of the Copyright Act—to specify who can be an author, as that question is determined by looking at the attributes of the work sought to be protected. The Copyright Act protects “original works of authorship,” not works of “human authors.” See 17 U.S.C. § 102. Moreover, the Monkey Selfies have all the attributes required for protection under the Copyright Act. To exempt them from protection on the sole ground that Congress did not specify that animals can be authors assumes erroneously that such specification would have been necessary.

This is pure nuttiness. The monkey selfies do not have all the attributes required for protection, because protection only goes to human beings. Why? Because copyright is supposed to act as an incentive to create. The monkey has no fucking clue about the copyright, and it had nothing to do with the incentive to create. Because it's a monkey. In Indonesia. Named Naruto. Who has no idea that some ridiculous lawyers are now in an appeals court in California pretending to represent its "interests."

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. Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 429 (1984). Because copyright protection exists primarily to advance society’s interest in increasing creative output, it follows that the protection under the Copyright Act does not depend on the humanity of the author, but on the originality of the work itself. The Copyright Act was intended to be broadly applied and to gradually expand to include new forms of expression unknown at the time it was enacted. Congress and the courts have explained that copyright protection is critical to ensuring the general public has access to works of authorship. The public places value in these works—and, self-evidently, so do the Defendants.

I cannot believe that lawyers are actually using the case that legalized the VCR (Sony v. Universal Studios) as the basis for arguing a monkey gets copyright. And copyright protection for a monkey is in no way critical for "ensuring the general public has access to works of authorship." It is not as if the monkey having or not having the copyright changes, in any way, the monkey's incentive to click buttons on cameras left on the ground.

The lawyers pretending to represent Naruto go on to claim that even though there's pretty clear 9th Circuit precedent saying that animals lack standing to sue unless expressly granted in the law, that doesn't apply to copyright law, because copyright law is just so awesome. And they continue to claim that copyright is necessary because the work is so valuable -- which is, you know, not how copyright law works:

Yet if animals cannot be authors, there is no copyright protection for their works.... This is fundamentally at odds with the fact that “[c]opyright protection extends to all ‘original works of authorship fixed in any tangible medium’ of expression.” ... It is also antithetical to the public interest, and hence, the stated purpose of the Copyright Clause. There is no doubt that the general public has an interest in works of art, regardless of their authors’ characteristics or attributes. The tremendous interest in Naruto’s work and Defendants’ attempts to exploit that interest (and to bar others from doing so) only buttresses this conclusion.

The idea that the lawyers at Irell and Manella are literally arguing that the public domain is "antithetical to the public interest" should mark them as complete numbskulls on copyright law.

One hopes that the 9th Circuit will make quick work of this case and toss it out. But, of course, there is the fear that the 9th Circuit will do what it does all too often in copyright cases... and come out with some nutty decision. Remember, this is the circuit that (thankfully, only for a short while before it reconsidered) decided that there was a brand new separate copyright for every actor's performance in a film -- so you could see the case come out with some totally ridiculous result. So, stay tuned. Plenty of us will be, though I can assure you that a certain macaque monkey in Indonesia could not care any less about these proceedings, even if he's officially the plaintiff in the case.

Filed Under: 9th circuit, copyright, david slater, monkey selfie, naruto
Companies: irell & manella, peta

PETA, Pretending It Can Represent A Photogenic, Selfie-Snapping Monkey In Indonesia, Has Appealed Its Copyright Loss

from the this-case-is-bananas dept

When we last we checked in with Naruto the monkey, he was suffering a humiliating loss in a California courtroom. It was enough that it probably wiped this smile right off Naruto's face: Aw, who are we kidding? The monkey has no clue about any of this. It's a monkey! The case is really about a giant publicity stunt by PETA, which is pretending to represent the monkey and claiming that a monkey taking a selfie can get a copyright. Incredibly, PETA hired a big time, previously well-respected law firm by the name of Irell & Manella, which argued with apparently straight faces that someone must own the copyright, and thus the monkey (and PETA) were the most obvious choice. But, that's something anyone with even the most marginal knowledge of copyright should know is not true, because we have something called the public domain. No one needs to hold the copyright because there might not be a copyright (and in this case, there is none).

Anyway, back in January, district court judge William Orrick explained all of that to PETA and its fancy lawyers, but gave them a chance to amend the complaint and refile. When the deadline passed with nary a smiling monkey complaint, many of us figured that PETA had moved on to some other lame publicity stunt. But, no, this weekend PETA's bananas law firm announced a planned appeal, filing the necessary notice with the district court.

In other words, the 9th Circuit -- home to some of the wackier copyright rulings ever -- will now hear a case about whether or not an Indonesian monkey, who took a selfie, gets the copyright. The whole idea is crazy, but remember, this is the same appeals court that once (briefly) ruled that an actress had a copyright in her own performance in a movie.

Filed Under: 9th circuit, appeal, copyright, david slater, monkey selfie, naruto
Companies: irell & manella, peta

Monkey See, Monkey Do, But Judge Says Monkey Gets No Copyright

from the sorry-folks dept

A few weeks ago, we wrote about some details from the court hearing in the ridiculous monkey selfie case in which PETA (the People for the Ethical Treatment of Animals) claimed not only that it represented Naruto, an Indonesian macaque monkey, but that the monkey should hold the copyright on this selfie: However, as we've explained time and time again (much to the chagrin of David Slater, the photographer whose camera was used to take the photo), the photo is clearly in the public domain, as it's long been held that the Copyright Act only applies to human authors. In court a few weeks ago, the judge made it clear he didn't believe PETA had any case at all, but Judge William Orrick has now come out with his written opinion in the case explaining his reasoning why. Not surprisingly, it more or less tracks with what he said in court: there is no evidence that the Copyright Act applies to monkeys, and thus, case dismissed -- with leave to amend. The judge cites numerous cases in which the courts clearly say the Copyright Act means a "person" when it refers to author... and PETA cited a grand total of zero cases that argued otherwise:

Here, the Copyright Act does not “plainly” extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit have repeatedly referred to “persons” or “human beings” when analyzing authorship under the Act. See, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) (“[A]n author superintends the work by exercising control. This will likely be a person who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be.”) (internal quotation marks, citations and modifications omitted) (emphasis added); Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997) (“For copyright purposes, however, a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].”) (emphasis added); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (“As a general rule, the author is the party who actually creates the work, that is the person who translates an idea in a fixed, tangible expression entitled to copyright protection.”) (emphasis added). Despite Next Friends’ assertion that declining to grant a monkey copyright to a photograph “would depart from well-established norms,” Next Friends have not cited, and I have not found, a single case that expands the definition of authors to include animals.

And the judge is also convinced by the Copyright Office rejecting non-human copyrights as well:

Moreover, the Copyright Office agrees that works created by animals are not entitled to copyright protection. It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014 (the “Compendium”). “When interpreting the Copyright Act, [the courts] defer to the Copyright Office’s interpretations in the appropriate circumstances.”... In section 306 of the Compendium, entitled “The Human Authorship Requirement,” the Copyright Office relies on citations from Trade-Mark Cases, 101 U.S. 94 (1879) and Burrow-Giles to conclude that it “will register an original work of authorship, provided that the work was created by a human being.”... Similarly, in a section titled “Works That Lack Human Authorship,” the Compendium states that, “[t]o qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.”... Specifically, the Copyright Office will not register works produced by “nature, animals, or plants” including, by specific example, a “photograph taken by a monkey.”

And thus, sucks for Naruto (and PETA):

Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art.” ... Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.

Filed Under: copyright, david slater, monkey selfie, monkeys, naruto, public domain
Companies: peta

Judge In Nutty PETA Monkey Copyright Trial Skeptical Of PETA's Argument, But Let's Them Try Again

from the monkey-business dept

As you know, we've been covering PETA (People for the Ethical Treatment of Animals)'s absolutely insane lawsuit claiming to represent the monkey who took this selfie: We'd been covering the story of that selfie for years, since first noting that it was almost certainly in the public domain, as copyright law only recognizes human authors. This discussion spurred not one, but two, separate legal threats made against us by representatives of David Slater, the guy whose camera the monkey used. It's also gotten Wikipedia involved (after Slater asked the site to not allow the image to be used, while Wikipedia agreed with us that the image is public domain).

However, the case took a turn towards the absolutely surreal when PETA stepped in, claimed that it represented the monkey (which it decided is named "Naruto") and that the monkey did, in fact, hold the copyright. It also sued Slater, who despite saying mean things about us in particular, we side with in this case in at least saying that PETA has zero claim, and it's ridiculous that they've dragged Slater into court. Since then, the legal arguments have been increasingly surreal.

Yesterday in San Francisco, Judge William Orrick, held a hearing over the request by Slater (and his publishing partner Blurb, who is a co-defendant) to dismiss the case entirely, because it's about a freaking monkey copyright. The judge, apparently, was somewhat amused by the whole situation, but did not appear even remotely sympathetic to PETA's arguments (for which, I should remind you, the organization is using a very well-known IP law firm, Irell & Manella). Judge Orrick didn't dismiss the case outright, but rather gave PETA a chance to amend the suit after noting some issues with it as it stands. PETA now has to decide if it's even worth it to submit a new complaint, recognizing that the judge may not be particularly open to their whole "animals can get copyright" arguments.

Reporter Sarah Jeong, who attended the hearing, noted some of the more insane arguments from PETA's lawyers (again, from a big, well-recognized law firm), including the idea that "if there's an author, it follows that there must be a copyright" (that's flat out false), and if there's "value" in the image, that also means there must be a copyright. Wrong wrong wrong wrong. And thankfully, the judge appears to recognize that. Oh, and how can I forget the argument that this is just like how slaves couldn't own patents before the 14th Amendment. Except this case is nothing like that (at all).

Anyway, the case isn't over yet. PETA might decide to walk away, but since this is all just a giant publicity stunt for PETA (don't worry, we didn't forget that!), that seems unlikely. It's likely that they'll try again and get laughed out of court.

Filed Under: copyright, david slater, monkey selfie, naruto, peta, public domain
Companies: blurb, peta

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. 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.

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

Monkey See, Monkey Sue... Defendants Ask Judge To Toss Out Ridiculous Monkey Copyright Lawsuit

from the good-going dept

So at the end of September, we wrote about the absolutely insane lawsuit in which PETA -- People for the Ethical Treatment of Animals -- bizarrely claimed to be representing "Naruto" (whose name we only just learned with that lawsuit), as the "copyright holder" of the image below. Naruto, of course, is the macaque monkey who is famous for taking this photo: Now, we've been writing about this monkey selfie for years now, mostly focusing on why the photo is clearly in the public domain. This issue comes up periodically, with the photographer whose camera "Naruto" used, David Slater, often taking random potshots at Techdirt for explaining basic copyright law to the public. Slater, as you may recall, still likes to insist that he holds the copyright on the photo, and twice has had companies apparently representing himself make dubious legal threats in our general direction.

Still, in a fight between PETA and Slater, we're totally on Slater's side. PETA has even less of a right to the copyright in the photo than Slater -- and Slater has none. Either way, PETA's lawsuit against Slater (along with Blurb, the publishing platform that Slater used to publish a book with the photo) has moved forward with both Slater and Blurb filing motions to dismiss. And given just how ridiculous this lawsuit is, these briefs fit right in. You can tell the lawyers had fun writing these. Slater's motion to dismiss is short and sweet (only 4 pages) and has a truly beautiful opening:

A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the setup for a punchline is really happening. It should not be happening. Under Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), dismissal of this action is required for lack of standing and failure to state a claim upon which relief can be granted. Monkey see, monkey sue is not good law – at least not in the Ninth Circuit.

Not surprisingly, Slater's lawyer doesn't even get into the whole public domain/copyright question at all. Instead, they just focus on the fact that a monkey has no standing to state a claim, and thus the case should be dismissed:

“[I]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.” Cetacean Community, 386 F.3d at 1179 (quoting Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F. Supp. 45, 49 (D. Mass. 1993)). In Cetacean Community, the Ninth Circuit rejected the notion that non-human animals could have standing under four Acts of Congress, including two that Congress enacted for the protection of animals: the Endangered Species Act and the Marine Mammal Protection Act. 386 F.3d at 1177-78. The standing inquiry for animals under Cetacean Community is very simple: unless Congress has plainly stated that animals have standing to sue, the federal courts will not read any legislation to confer statutory standing to animals. Id. at 1179.

Congress has not plainly stated that non-human animals have standing to sue for copyright infringement. Nothing in Title 17 of the United States Code even hints at that possibility. Indeed, imagining a monkey as the copyright “author” in Title 17 of the United States Code is a farcical journey Dr. Seuss might have written. The “children” of an “author” can inherit certain rights “whether legitimate or not” and that includes “children legally adopted” by the author. See 17 U.S.C. §§ 101, 201, 203 and 304. An author’s “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.” § 203(a)(2)(A). Accepting Plaintiff’s standing argument would present the bizarre possibility of protracted family and probate court battles when the offspring of non-human authors scrum over the rights to valuable works.

Meanwhile, the filing from Blurb is four times as long at 16 pages, and goes into a bit more depth, but is basically making the same argument -- and the lawyers can't resist a few monkey jokes of their own. The very first line makes that clear: "This is a copyright case filed on behalf of a monkey." And from there, Blurb makes a few different arguments, including the fact that a photo taken by a monkey cannot receive copyright protection:

As a threshold matter, Naruto lacks Article III standing to invoke the Court’s jurisdiction. Even if Naruto took the Monkey Selfies (a fact contradicted by allegations in the Complaint), he has suffered no injury, much less one that is redressable by this lawsuit. The U.S. Constitution and the Copyright Act contemplate copyright protection only for humans. Accordingly, the action should be dismissed under Rule 12(b)(1) for lack of a justiciable case or controversy.

Dismissal is also appropriate under Rule 12(b)(6) for lack of statutory standing and failure to state a claim. The Copyright Act affords no rights or protections to animals, the courts have repeatedly found that human authorship is required for copyright protection, and the U.S. Copyright Office has outright rejected any assertion that Copyright Act protects “photograph[s] taken by a monkey.” Accordingly, Next Friends cannot establish that Naruto owns a valid copyright, much less that it was infringed by Blurb. The entire Complaint should be dismissed with prejudice.

The Blurb filing also highlights (as some press reports have) that PETA swears that Naruto is a male macaque monkey -- while nearly all reports prior to this (including all explanations from Slater) have been that the monkey is female.

Of course, PETA will hit back on this, but we'll see if the judge lets this monkey business go on for much longer.

Filed Under: copyright, david slater, monkey, monkey selfie, peta, public domain
Companies: blurb, peta

PETA Defends Its Rights To Represent The Selfie-Taking Monkey In Court

from the that's-a-silly-question dept

We've written plenty about the infamous monkey selfie, and have even been threatened by two totally separate organizations for posting the photo here on Techdirt (which we're about to do again): Last week, the story got even weirder, where PETA, the animal rights organization, sued photographer David Slater on behalf of the monkey, who they claim is named Naruto. As we've explained in detail, the photos are almost certainly in the public domain based on all relevant copyright laws. Slater has repeatedly denied this, insisting the copyright is his (and he apparently also likes to regularly disparage Techdirt's coverage of this story). But, still, we're at least on Slater's side in this particular lawsuit. PETA has much less of a claim to the copyright than Slater does (and, as we've noted, Slater has none).

Sarah Jeong, over at Vice's Motherboard, likes to dig deep into wacky copyright stories, and this was no exception. Her original article on this story was basically a bunch of good questions about the lawsuit, including things like "How do they even know the monkey's name is Naruto?" and "Can monkeys even sue?" Amazingly, PETA's lawyer agreed to be interviewed by Sarah, and the results are totally worth reading. She starts out by exploring the question of Naruto. How do they know his name, how are they sure it's really Naruto in the photos -- especially since Naruto is a male and nearly all of the original stories about the monkey selfie claimed that the macaque selfie photo was of a female. Slater himself has said that it was a female.

Jeong doesn't quite get to the bottom of it, but there's at least some evidence that the monkey really was a male, and it's entirely possible that he's been named Naruto by the folks who study the monkeys in Indonesia. But then there's the legal discussion. I will just give you this snippet and then tell you that you need to go read the whole thing. Also, news would be a lot more interesting if journalists did interviews like this more frequently.

Does Naruto know about this lawsuit?

[pause]

Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly. The issue is as I’ve stated it.

Does Naruto know about his selfies?

[pause]

I have the same response.

Naruto certainly knew at the time that he was engaged in intentional conduct that is obvious from Mr. Slater’s own description of the situation. And Naruto clearly engaged in the purposeful intentional conduct that resulted in the creation of the selfies.

There's more and it gets better. I, for one, can't wait to see if someone tries to list Naruto as a witness.

Filed Under: copyright, david slater, monkey selfie, naruto, public domain
Companies: peta

Monkey Business: PETA Sues On Behalf Of The Monkey Selfie; Claims Copyright Belongs To The Monkey

from the this-case-is-bananas dept

Remember the monkey selfie? That is the photo that was taken by a macaque monkey in Indonesia, using a camera left on the ground by photographer David Slater. It first became a story back in 2011 when the photographs of the monkey became a bit of an amusing filler piece for some newspapers. But because we're always interested in the copyright elements of this, we focused on whether or not there was any copyright at all in the photograph. This has become a story that, apparently, will never die. It started when we received a takedown notice over the monkey selfie, leading us to explain, in great detail, why the image is in the public domain. Slater himself eventually chimed in with a ridiculous and wrong understanding of copyright law, in which he insisted that he actually deserved the copyright. But he was wrong.

The story seemed to die down for a while, but became a thing again last year when Wikipedia also refused to take down the public domain image. As we noted, the whole fight highlighted how ridiculous the belief is that everything must be owned. Even more ridiculous was that David Slater then threatened the public interest group Public Knowledge over the monkey selfie... and then we received a totally laughable cease & desist based on a questionable scheme claiming some sort of "personality rights" for the monkey under the laws of Guernsey (don't ask).

While all of this was going on, Sarah Jeong wrote a pretty funny satire piece about why the monkey should get the copyright... but it appears that the publicity hounds at PETA (People for the Ethical Treatment of Animals), who are known for their ridiculous publicity stunts, decided that this was a cause worth taking up and have now filed a lawsuit on behalf of the monkey against the photographer David Slater. Think of it as abusing the legal system for publicity.

Okay, while we've gone over the legal arguments in great detail in the past, let's do a quick recap. There are three general arguments about the copyright in the photo: (1) Slater has the copyright (2) the monkey has the copyright or (3) no one has the copyright and the image is in the public domain. (1) is clearly not true. In order to get the copyright you need to take the picture or have the copyright assigned to you, which would require the photographer to go through the process of assigning the copyright to you. Slater said from the beginning that he left the cameras on the ground and the curious monkeys took the photograph, so by his own words, he made it clear that he was not the photographer and does not get the copyright. On (2), copyright law is pretty clear that only humans can get copyrights, and thus the monkey cannot have the copyright, nor can it assign the copyright to a human, because it never had it in the first place. So the remaining option is (3) the image is in the public domain.

In fact, last year the Copyright Office itself weighed in on this with its Compendium of US Copyright Office Practices, which pretty clearly states no copyright on monkey selfies: So that brings us today's news, in which PETA has filed a copyright lawsuit, in the name of the monkey against the photographer, claiming that the monkey holds the copyright and that Slater has infringed. We agree that Slater does not hold the copyright, but the idea that the monkey does is wrong too. Also... um... how the hell does PETA have the right to represent the monkey or standing to file this lawsuit? But, yes, the filing is in the name of the monkey, which is -- according to PETA -- Naruto. From the lawsuit:

Naruto has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner. While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. Naruto should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his behalf by the Next Friends.

The lawsuit then requests that the court not only give the (non-existent) copyright to the monkey, but then allow PETA to administer the copyright on the monkey's behalf. The lawsuit doesn't even attempt to get around the whole "not by a person" thing other than to claim that these monkeys are really special. They may be, but it doesn't change the law.

Also, it barely seems worth mentioning, but PETA seems to also ignore that the statute of limitations on copyright law is... three years. And the photograph was taken over four years ago. As Matt Schruers notes, it appears that the plaintiff, Naruto, was, well, "monkeying around" all this time, rather than filing a lawsuit in the allowed time period. Amazingly, PETA got a decently large and well known law firm, Irell & Manella, which handles lots of copyright cases, to file this joke of a lawsuit.

This case can and should be tossed out for a whole variety of reasons from standing to statute of limitations to simple basic copyright law. But, again, if it's all just yet another publicity stunt by PETA, it's not clear that they care. But, using the judicial system for publicity stunts is generally frowned upon. Whether or not this monkey business is sanctionable is something that a judge may have to explore eventually.

Filed Under: copyright, david slater, monkey selfie, monkeys, public domain
Companies: irell & manella, peta

Our Reply To A Totally Bogus Monkey Selfie Cease & Desist

from the monkey-see,-monkey-do,-monkey-needs-to-learn-the-law dept

Dear Icondia,

I am in receipt of your letter, dated December 22nd, but received earlier this week, in which you assert a number of things and demand that we "cease and desist" from "all infringing activities" concerning the now rather famous "selfie" image taken by a macaque monkey using a camera supplied by photographer David Slater. I am assuming you're familiar with this image -- as is much of the world -- but as a reminder, it is this one: We, as a news publication that frequently discusses intellectual property issues, have been covering this story since those photos first went viral in 2011, focusing specifically on the intellectual property questions raised by the photos, and the fact that under the law, they are unquestionably in the public domain. In fact, yours is not the first request to take down these photos, as a previous representative of Mr. Slater's, Caters News Agency, sent us a shorter demand letter in 2011. At the time we explained why we had no obligation to take down the photos.

That is still true today, even as you present your rather unique legal theories. I gather, from your website, that your organization was set up to try to cash in on the Image Rights (Bailiwick of Guernsey) Ordinance, 2012, specifically, in trying to make a big deal out of a new (and tremendously problematic) intellectual property concept known as "personality rights." It also appears that the world has not beaten a path to your door over this law, as one analysis shows that in the years since this new law passed only 51 registrations have occurred, three of which are related to this particular macaque monkey.

This law does not apply to us for a variety of reasons, just a few of which we will detail below. If we need to lay out even more reasons as to why your argument is absolutely frivolous -- such as in court -- we are prepared to do so.

First, we are a US-based company with all of our servers in the US, and the laws of the US apply to us. The laws of Guernsey do not. In the US, the image is quite clearly in the public domain, as we have discussed for years. While I recognize that some people employed by your firm have some rather unique legal theories for why this photo may not actually be in the public domain, the US Copyright Office disagrees with you. This past August, the US Copyright Office released a draft of its Compendium of Copyright Practices, which notes, rather directly, that a photograph taken by a monkey is not subject to copyright, but rather would be in the public domain. It is on page 54 of the document, though I'll post a screenshot here of the relevant portion (which I can easily do because, as a work of the federal government, this document is also in the public domain): On December 22nd -- the same day you sent your letter -- the Copyright Office further updated the Compendium so that it is no longer in draft -- and is now officially in its 3rd edition. You can see the document here. The Copyright Office actually extended its discussion on this matter, but as you can see on page 68, Section 313.2, it still notes that a "photograph taken by a monkey" is not copyrightable subject matter under US law. While it is unlikely you saw this official edition in time for sending out this letter, the draft edition was available for many months.

As the image is unquestionably in the public domain in the US, we are not infringing on the "exclusive image rights" of the image. Thus we will not cease and desist from posting that image. We need neither permission nor a license to continue to do so and we do not believe that either you or Mr. Slater have any legitimate property rights in that image.

Even if, for argument's sake, there was a possibility of a US copyright in the image, we would still not be taking the image down, as our use of it is unquestionably fair use. The times where we have posted the image have all involved significant amounts of journalistic commentary about the image (and, mainly, how the image is in the public domain). News reporting, commentary, and criticism are all quintessential examples of fair use, and our use of the image clearly meets those criteria.

Now, let's take this a step further, and assume (solely for argument's sake) that the law of Guernsey somehow applied to us -- which it does not. Again, the law would not apply to our use. First, the personality rights law that you rely on allows for someone to register their own personality. The image here is of the macaque monkey, not David Slater or Wildlife Personalities, and thus only the macaque monkey in question could potentially qualify to register the image. But, as with copyright law, the law in question states that it only applies to a "natural person" which means "a human being." Thus, you immediately run into the same issue as to why this image is in the public domain -- it was not authored by a human being and thus is not only not subject to copyright law, but similarly not subject to Guernsey's "personality images."

Second, even if we were to ignore that particular issue, which seems rather fatal to your argument, the image in question does not appear to meet the criteria necessary to make the claims you are making. Section 28 of the Guernsey law you are trying to apply here requires that the image must be "distinctive" meaning that it is "recognised as being associated with the registered personality." However, the "personality" in question appears to be "Wildlife Personalities Limited." While that may be David Slater's company, the image in question is not widely associated with that organization, and is certainly not recognized as such. In fact, nearly all of the public discussions in the last few years about the image are about how the image is in the public domain and emphatically not linked to Slater or any company he may have. The image is recognized as being associated with the monkey itself, but again, the law clearly states that such personality rights only applies to "human beings."

Third, and more importantly, even assuming (again, for argument's sake) (1) that the image is not in the public domain, (2) that we are somehow subject to the laws of Guernsey and (3) that the image in question is properly registered under Guernsey's laws, the law still would not apply to our use. That's because Section 32 of the law makes it rather clear that it is not infringement to use such an image for "reporting current events or news commentary." Here's the section of the law, in case you haven't read it in a while:

Fair dealing with a registered personality's image for the purposes of -

(a) reporting current events or news commentary (including criticism or review), or
(b) publishing or broadcasting any other bona fide journalistic material which is a subject of general or public interest,

does not infringe that registered personality's image rights.

In short, under no possible interpretation of any law are we infringing on anyone's usage in posting the image as part of our discussion concerning how it is, unquestionably, in the public domain. Thus, we have to reject your assertion that we are somehow infringing on the image, while similarly refusing to sign your "settlement agreement" as we have nothing to settle and nothing to agree to.

I would wish you luck in your quixotic quest to create this new type of "personality right" but, frankly, I find it an offensive and dangerous expansion of theories that seek to lock up public domain information and a clear attempt to infringe on free speech rights here in the US and around the globe. If you have any further questions about any of this, I would be happy to discuss them with you or put you in contact with our legal counsel who I'm sure would be more than happy to review these points in even greater detail with you.

Mike Masnick
Techdirt / Floor64 Inc.

Filed Under: copyright, david slater, fair dealing, fair use, guernsey, monkey, monkey selfie, personality rights, public domain
Companies: icondia, wildlife personalities limited

Monkey Selfie Back In The News: Photographer Threatens Copyright Experts With His Confused Understanding Of Copyright

from the want-to-try-that-again dept

Oh boy. The "Monkey Selfie" is back. Yes, that picture that we first wrote about three and a half years ago, including a detailed analysis of why the picture is almost certainly in the public domain, is still creating a stir. It got some attention again a few months ago when some new news reports falsely argued that people were saying the monkey held the copyright. However, we noted that the photographer whose camera was used, David Slater, was still claiming that the copyright was his. A day later, we wrote about a great writeup by Sherwin Siy, Public Knowledge's VP of legal affairs (and a copyright expert), discussing the weird belief some have that someone must own the copyright on everything.

For reasons unknown, earlier this week, Slater suddenly decided to send Siy and Public Knowledge an ill-informed, poorly reasoned legal threat about that post. The letter Slater sends is fairly incredible, both in its reasoning and in its target. Not only do the claims in the letter misrepresent the law, but they misrepresent Siy's post and the use of the image. Here is Slater's letter:

From: David Slater
Date: Wed, Dec 10, 2014 at 1:10 PM
Subject: Infringement notice
To: pk@publicknowledge.org

Dear Public Knowledge,

I am writing to inform you that I have read your blog post authored by Sherwin Siy:
https://www.publicknowledge.org/news-blog/blogs/nobody-cant-hold-a-copyright-which-means-sometimes-nobody-holds-a-copyright

It is factually incorrect and damaging to me.  It encourages the public to infringe my copyright of the monkey images.  The text, in my opinion, is willfully damaging and disrespectful to me.  This accords with your mission statement.

The exclusion of any proper accreditation to the image, or even mention of my name in relation to the image, infringes upon my moral rights to the image and is contrary to any Fair Use dealing.  Furthermore, it affects the commercial value of the image to me.  It is also being used to benefit Public Knowledge and your mission at the expense of my own.  This is contrary to fair use and also your mission which claims to uphold the fair use doctrine.

The article is unbalanced and unfair and is infringing my publicity rights and rights to commercialize the image/s.

I do not believe you made any attempt to contact me, preferring instead to cherry pick sources that you know to be biased and encouraging theft of my images and destruction of my reputation and personality rights.

The image is registered with the USCO and is a part of a registered Image Rights under Guernsey Ordinance 2012.

Your site acknowledges it's core mission is to protect fair use and the public domain.  Your site, in my opinion, is abusing fair use and damaging the concept of public domain.

A public domain image is one in which a living author has voluntarily relinquished rights to the image.  Any debate claiming acts of nature were resonsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain.

Public Knowledge nor Sherwin Siy nor Wikimedia have the right to decide.  Any action attempting to wilfully infringe copyright to make a claim for public domain, including textual references that encourage others to infringe, shall be liable for prosecution under the legal jurisdiction of my choice.

Public domain is NOT a place such as Wikimedia's Creative Commons or the internet.

You have cherry picked sources of information from Buzzfeed, Techdirt and the 1709blog, that simply agree with your mission to remove property rights from professional artists like myself using ridicule, poorly sourced material and  unfounded reasoning.
In so far as your contributor's claim that it is myself who claims Wikipedia is the source of the monkey owning copyright, please state your reasoning.  Note that Wikipedia states the author of the images is the monkey itself, with blatant removal of the true author's copyright watermarks.  Authors are entitled to copyright.

I wish to see any evidence you have of any license you have purchased for the use of my image.

If you have purchased a license I will still require some amendment to the article.

I am willing to overlook your infringement if you rectify the article with another article that reports the facts of the story.  I will work with you to do this and you will grant me the ability to comment on the article in draft form prior to publication.  Publication should be within the calendar month of this e-mail.

 I will await your acceptance for 24 hours in which to agree to rewrite the article. I will take your absence of any reply and acceptance of my terms as your acceptance of guilt and will forward your details to my lawyers in the US and UK..

Sincerely,

David J Slater

And here is Siy's -- quite even-handed -- response:

From: Sherwin Siy <ssiy@publicknowledge.org>
Date: Thu, Dec 11, 2014 at 11:13 AM
Subject: Re: Infringement notice
To: David Slater

Dear Mr. Slater:

Thank you for your email of December 10, regarding my August 6th blog post about the macaque photos taken with your camera.

To be brief, we have not purchased any license for the use of the photograph, and do not plan on doing so. We will also not be removing or substantively amending the post. We do not have any plans to allow you to publish your thoughts on this matter on our website. We may be commenting upon this matter, including this correspondence, on the site in the near future.

As you can tell from the post, I do not believe that you hold a valid copyright in that particular image. This allows us to reproduce the image without first seeking your permission, or listing you as a contributing factor to its creation.

You say that the photo has been registered with the “USCO;” I take this to mean the United States Copyright Office. In August, not long after I published my blog post, the Copyright Office issued an updated draft of its Compendium of Copyright Practices (http://copyright.gov/comp3/docs/compendium-full.pdf), the manual for its internal practices, including registration. Of particular note is its commentary on the “human authorship” requirement in section 306 (page 54 of the linked .pdf), which says that the Office will refuse to register a claim of copyright if a human being did not create the work. Lest you think I am stretching their point, their first specific examples of a non-human authored work (among other examples such as elephant murals, wave-shaped driftwood, or the natural appearance of animal skin) is

·      A photograph taken by a monkey.

Even beyond the question of whether you have a valid copyright in that image is my, and my employer’s, exercise of our fair use rights. You will note that our use of the photograph was in the context of discussing that photograph. News reporting, commentary, and criticism are all quintessential examples of fair use, and this clearly falls within them. Whether or not our use of the image “benefits our mission” is largely irrelevant to that determination, too. If uses of copyrighted works were only fair when they were useless to the user, it would be a singularly useless doctrine.

You say

A public domain image is one in which a living author has voluntarily relinquished rights to the image.  Any debate claiming acts of nature were resonsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain.

This is not true. It would be absurd for every instance of the use of public domain works to be litigated. The fact that certain works have no copyright holder (because the term of copyright has expired, because the work is not the creation of a human author, or because the work was not sufficiently fixed or sufficiently creative) means that there would be no one to definitively contest the usage in court. Publishers reprinting copies of The Murders in the Rue Morgue should not, and need not, wait for a court to grant them permission; users of creative works authored by the federal government of the United States do not have to go to court for permission each time they wish to use those images. If a particular person believes that a work is not in the public domain and that their rights have been infringed by a use, they are, of course, free to raise that question in court.

You also say this:

In so far as your contributor's claim that it is myself who claims Wikipedia is the source of the monkey owning copyright, please state your reasoning. 

I confess to being a bit confused by this; I presume this comes from my statement in the blog post that

Basically, there’s a bit of a red herring going around, saying that Wikimedia claims that the monkey owns the copyright.

For the simple sake of avoiding any further confusion, let me clarify this by saying that I simply meant that a number of commentators (not you) were incorrectly following a tempting possibility that the monkey might hold a copyright. I certainly did not intend to imply that you were one of those commentators, or a red herring.

Having dealt with the legal questions, I would also like to discuss some of your other, non-legal complaints. You say that my blog post was “willfully damaging and disrespectful” to you. It was not. While we clearly disagree on the scope and applicability of the law, I never insulted you or mocked you.  You might note that, at the bottom of the post, I, in the interest of being even-handed, even say you have a “colorable” argument for copyrightability—more credit than many of my learned colleagues have given you. The point of the post was to articulate a legal distinction that many missed—that the question was not whether or not a macaque could hold a copyright, but whether or not you could have a photograph in which no one held a copyright. Your actions and character were not disparaged, or even mentioned, because they were not relevant to that discussion.

I will note, however, that whether I was disrespectful or not has no bearing on any legal matters at hand here. While I believe I was more than fair in my treatment of your reputation in that post, I did then, and do now, have every right in the world to be disrespectful of you in public.

I hope that this letter resolves any dispute we might have. If it does not, we may be reached for service of process at the mailing address below. I eagerly await your reply.

Best regards,

Sherwin Siy
Vice President of Legal Affairs
202-861-0020  |@SherwinPK
Public Knowledge |@publicknowledge |www.publicknowledge.org 
1818 N St. NW, Suite 410 | Washington, DC 20036

Siy's response, of course, covers all of the important stuff. However, I wanted to further comment on Slater's troubling belief that the public domain only applies to works that someone has proactively relinquished into the public domain. This goes right back to the point of Siy's original article: the troubling belief by some that everything must be owned in some form or another. This implicit belief is not only not the law, but it's immensely problematic. Culture works by openness and sharing. The history of culture is one in which people reused, reshared and remixed the works of others. The massive increase in locking down works via copyright laws has certainly limited that ability over the past hundred years or so, but it has not taken away the concept of the public domain entirely, as Slater seems to believe.

Slater can't seem to fathom that the photograph doesn't belong to him, no matter how many legal experts have explained it to him. Even worse, he can't seem to fathom that things like the public domain and fair use are not only important, but are also part of what's made him be able to do what he does. Those who dismiss or misunderstand things like fair use and the public domain are ignoring the cultural body of work that made them who they are today.

Filed Under: copyright, david slater, mean people, monkey, monkey selfie, public domain, sherwin siy