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

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

Photographer Still Insisting He Holds Copyright On Photo By A Monkey, Hints At Possibly Suing Wikimedia

from the test-cases dept

Three years ago, we wrote about the bizarre case of a monkey who apparently grabbed a photographer's camera in a national park in Indonesia and snapped a selfie (that was back before "selfie" was so common a term -- and we just called it a "self-portrait"). There were a few different shots, but the one that clearly got the most attention is this one: As we noted when we wrote about it, it seems fairly clear that the work is in the public domain. We were idly curious about how a news licensing agency (Caters New Agency) could claim the rights to the photograph. A few days later Caters itself demanded that we take down the photo, claiming that the copyright was held by the owner of the camera, David Slater. Slater himself insisted the copyright was his. However, as we explained in fairly great detail, looking at the laws of the US, the UK (where Slater is from) and Indonesia (where the picture was taken) the image is almost certainly in the public domain, no matter how you look at it.

Under all three laws, the rules say that the work needs to be done by a person, and a monkey doesn't count. Slater, however, claims that because the camera is his, it's still his copyright. While that's what many people think copyright law says, it's not actually what copyright law says at all.

The latest is that Slater is apparently still considering legal action against Wikimedia for refusing to take down the image from Wikimedia Commons.

The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.

Mr Slater now faces an estimated £10,000 legal bill to take the matter to court.

First, I should note that if someone thinks the monkey holds the copyright, that's incorrect as well. While it's true that, in most cases, the person who takes the pictures gets the copyright, as noted above, the laws say it needs to be a person, so monkeys don't count. The image is public domain. The "monkey holds the copyright" claim appears to be a mistake by the author of the Telegraph piece. The guy who uploaded it has directly stated that he said there was no copyright (i.e., public domain) because there was no human author.

From here, Slater tries to flip the burden of proof, and claims that the copyright is his until proven otherwise in court:

“If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realise is that it needs a court to decide that,” he said.

While it's true that a court would decide the final result, the burden is actually on the copyright holder. To bring a copyright claim, you first have to prove that you hold the copyright. It's not the other way around. As Sherwin Siy of Public Knowledge notes, a system in which you needed a court to assert an affirmative defense would mean that no one could ever claim self-defense. That's just not how it works.

Slater also seems to believe in an odd "sweat of the brow" concept of copyright that simply isn't relevant:

“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said.

The amount that the trip cost is meaningless on the copyright status of the photo. Photography is an expensive profession, but sometimes, apparently, it's so simple that... well... even a monkey can do it.

That said, the whole "jeopardizing his income" and "taking livelihoods away" lines are pretty extreme and ridiculous. This photo got Slater a tremendous amount of fame, and a chance to capitalize on that. If he wasn't so focused on a misguided legal fight against Wikimedia, why not use the photo as a calling card to get hired to do all sorts of other wildlife shots?

So why is this even an issue again at all? Well, that's partly Wikimedia's fault. It just released a transparency report, which discusses the whole monkey situation in a case study.

Filed Under: copyright, david slater, monkeys, photography, public domain

TSA Agent: Give Me That Toy Monkey Gun Or I'm Calling The Real Cops

from the monkey-see-monkey-do dept

I have something of a conflicting relationship with the Transportation Security Administration. On one side, I absolutely hate the idea of giving up freedom and pride for the sake of one of the most futile attempts at security theater known to man. On the other hand, it's quite useful to have such an amazing example at which to point when I get into a conversation with someone about how stupid my government can be. Then again, it's hard to justify that use when so many of my countrymen are subjected to poking and prodding by agents of the people that elect them. On the other hand, I mean, if I'm ever lonely on a cold, wintery night, the airport ain't that far away, know what I mean?

But, in an apparent effort to make my mind up for me, the TSA has recently decided to prove to the world that they've lost their collective minds. The latest example of this is when the TSA in St. Louis took possession of a gun a woman had in her bag. Which would be fine, except that the gun was 2 inches long and was owned by the sock-puppet the woman had crafted as part of her business.

The TSA agent searched the bag and found the 2-inch-long toy pistol, which gave her pause.

"She said, 'This is a gun,'" May said. "I said, 'No, it's not a gun it's a prop for my monkey.'"

But the agent remained concerned.

"She said 'If I held it up to your neck, you wouldn't know if it was real or not,' and I said 'really?'" May said.

Again, kudos to this TSA agent for making certain everyone around her knew she wasn't competent enough to be able to tell a real gun from a 2 inch toy because, hey, that's going to be useful information come performance review time. And sure, there might be some TSA rule somewhere that specifically says that nothing even resembling a firearm can be taken onto a plane in this way, but that doesn't make the passenger stupid, it makes the rule stupid. Put it this way: we now live in a country where you can't take a sock-puppet's toy gun on a plane. Congratulations everyone.

Fortunately for everyone on the flight, safety is the TSA's primary concern.

The agent confiscated the monkey doll's toy weapon and said she was required to call police.

"Rooster Monkburn has been disarmed, so I'm sure everyone on the plane was safe," May said. "I understand she was doing her job but at some point doesn't common sense prevail?"

Of course not, citizen. There's nothing in the TSA employee handbook about common sense. It's all genital-brushing and nudie-scanning, all the time. Even the TSA said so when they were asked to comment:

The TSA told NBC News in a statement: "TSA officers are dedicated to keeping the nation's transportation security systems safe and secure for the traveling public. Under longstanding aircraft security policy, and out of an abundance of caution, realistic replicas of firearms are prohibited in carry-on bags."

There's a joke here about something being two inches long still being the realistic version of an object typically several times larger, but I'm not going to make it (pssst! I'm talking about penises again!). Instead, let's just say that the TSA's dedication to not using any semblance of common sense is a wonderful prime reason for their dismantling.

Filed Under: guns, monkeys, sockpuppet, toys, tsa

DailyDirt: Smart Primates

from the urls-we-dig-up dept

It shouldn't be too surprising that primates (besides humans) can exhibit some pretty amazing complex behavior. We haven't quite managed to get enough skilled (real, not virtual) monkeys together with typewriters to reproduce the works of Shakespeare, but maybe they just need iPads and touchscreen keyboard input (because who hasn't gotten frustrated with a typewriter?). The more we watch our genetic cousins, the more we see how smart they are -- and could be. Here are just a few examples of smart monkeys.

• Capuchin monkeys are known to be social and cooperative animals, but it's still fascinating that when they observe humans acting selfishly, they'll reject offers of food from these 'dangerous' humans. The conclusion that these monkeys avoid selfish people might be a bit simplified, but this study adds to the evidence that monkeys can recognize fairness. [url]
• Chimpanzees know how to eat better than some people -- since these primates apparently eat certain foods at optimal times of the day when the nutritional benefit of their food is at its peak. Chimps may not consciously know that they're eating in a healthy way, but their dietary habits get them to eat various leaves near the end of a day when the sugar content of those leaves are highest. [url]
• Monkeys at New York City's Central Park Zoo have been observed whispering behind the back of a (human) zoo supervisor. Apparently, these monkeys hate this guy and had previously harassed him with loud screaming, but now they've been recorded whispering (and plotting?) behind his back after he leaves. (insert sinister music) [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: animals, behavior, capuchin, chimpanzee, chimps, intelligence, monkeys, primates, smart

DailyDirt: Geekier Than Monkeys Typing

from the urls-we-dig-up dept

According to the "Infinite Monkey Theorem," a monkey hitting keys randomly on a keyboard for an infinite amount of time will eventually type out the complete works of Shakespeare. There have even been efforts to put that theorem to the test by creating virtual typing monkeys that managed to recreate at least one of Shakespeare's works. But those monkeys were digital – here are a few examples of some real, geeky animals.

• Cows in the UK outfitted with "smart collars" can notify farmers when they're sick or in heat. The collars use the same kind of 3D sensor that is found in Wii video game controllers to detect movement. [url]
• A monkey in China with two sensor chips implanted in its brain can control a robot hand with its thoughts. The sensors monitor 200 neurons in the monkey's motor cortex, and its brain signals are translated into real-time robotic finger movements. [url]
• Alex, an African grey parrot, had mathematical abilities that were at least as good as those of chimpanzees. He had been trained to count objects, and could add two numbers up to a total sum of eight, or add two sets of objects up to a total sum of six. [url]
• To discover more interesting biological curiosities, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: animals, biology, cows, intelligence, monkeys, parrots, smart animals

DailyDirt: Talking To Animals

from the urls-we-dig-up dept

Unfortunately, there are no dog collars like the ones in Up that can translate what dogs are saying into perfect English. But the technology to create an animal translator could actually be on the way. Considering how well machines can translate between two different human languages, though, the goal of conversational translation seems a tad lofty. Here are just a few quick links on animal communication projects.

• A prototype device for two-way communication with dolphins is going to try to talk with wild dolphins near the Florida coastline. This project is also trying to co-develop a language with dolphins, instead of trying to force a human-made language upon our flippered friends. [url]
• Pet parrots released into the wild are apparently teaching other birds how to say some human expressions. And just like high school kids learning a foreign language, these birds have picked up a lot of swear words. [url]
• Chimps that were taught sign language have been observed teaching sign language to their young. Monkey see. Monkey do! [url]
• To discover more interesting biological curiosities, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: animals, birds, chimps, dolphins, language, monkeys, parrots, talking, translator, washoe

Did A Few Million Virtual Monkeys Randomly Recreate Shakespeare? Not Really

from the not-yet dept

Slashdot alerts us to a report that a guy who set up a few million virtual monkeys trying to recreate Shakespeare -- a la the infinite monkey theorem -- has succeeded in recreating its first work of Shakespeare. Specifically, it's A Lover's Complaint, which is a narrative poem that was apparently published as an appendix to a book of Shakespeare's sonnets.

Of course, looking over the details, I'm a lot less impressed than I thought I would be. My understanding of the "infinite monkeys" idea was that you had those million monkeys typing away, and in some potentially near-infinite amount of time, one of them would actually craft the works of Shakespeare. Or, at the very least, that multiple monkeys would individually create the different works of Shakesepeare. But as far as I can tell from the guy's description, it sounds like he's taking any 9-character segment that matches any 9-character segment of a Shakespearean work and declaring the segment it "done." The process continues, filling in other random 9-character segments, until the entire work is done. That's not nearly as impressive. What would it take to get virtual monkeys to write an entire work of Shakespeare in one go? Or even just one sentence? That seems like a much more challenging problem... so this one is actually a bit disappointing.

In the meantime, as one of the articles about this project notes, when real monkeys were given real typewriters:

"Not only did the monkeys produce nothing but five pages consisting largely of the letter S, they began by attacking the keyboard with a stone, then proceeded to urinate and defecate on it."

So there's that. But let's see the virtual monkeys do something a little more advanced before we cheer them on.

Filed Under: monkeys, randomness, shakespeare, virtual monkeys

DailyDirt: Studying Advertising As A Science...?

from the urls-we-dig-up dept

There's a quote attributed to John Wanamaker that goes: "Half the money I spend on advertising is wasted; the trouble is I don't know which half." Marketing analytics is getting better all the time, but it's still pretty hard to pin down what really works. (At least the traveling salesman problem has a brute force approach!) Here are just a few interesting links about advertising.

• Sex sells. Here's a project that aims to prove it by advertising to monkeys. Photoshopping the ideal female monkey form must be a pretty weird job... [url]
• There's some research that suggests that the special status of fine art could be lost if used in advertising carelessly. Yah, like when I first heard The Beatles' Revolution in a Nike commercial. [url]
• Authenticity is important -- even to a Nazi. Psychologist Paul Bloom talks about how we're all essentialists at TED and mentions how kids could think veggies are tastier if they're included in a Happy Meal. [url]
• To discover more interesting advertising-related content, check out what's floating around on StumbleUpon. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: ads, art, authenticity, john wanamaker, marketing, monkeys
Companies: mcdonald's, nike

DailyDirt: Gee, Brain, What Do You Want To Do Tonight?

from the urls-we-dig-up dept

Maybe animals are getting smarter. We've covered how some monkeys have figured out how to take pictures of themselves, and we're learning more interesting things about animal behavior all the time. Here are a few more interesting discoveries that could bring us some damn dirty apes.. and fish and bees and lizards.

• There's mounting evidence that fish might be able to use tools. So someday a fish might need a bicycle, like a woman needs a man... [url]
• Bumblebees tackle the traveling salesman problem all the time and seem to get pretty good solutions -- perhaps using some of the same tricks that humans use to try to find optimal solutions. Hmm. Do educated fleas do this kind of thing, too? [url]
• Lizards from Puerto Rico have passed a cognitive test that was designed for birds. Yoda was right about some advanced cognitive skills: "You must unlearn what you have learned." [url]
• To discover more interesting biological curiosities, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: bumblebees, fish, lizards, monkeys, tools, traveling salesman