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