Will PETA Now Sue To Control The Copyright In These Cat Selfies?

from the questions-questions-questions dept

As noted recently, PETA isn't giving up in its quixotic quest to argue that it can represent the interests of an Indonesian selfie-taking monkey, and further that the photos in question have a copyright and that copyright belongs to the monkey (and, by extension, PETA). UK IP professor Andrés Guadamuz recently wrote an interesting paper arguing that there is a copyright in the photograph and it belongs to the guy who owned the camera, David Slater, based on UK copyright law. It's an interesting read, though others have convincingly argued the opposite, noting that UK law requires a "person" to have created the work.

Either way, it seems this question may not be going away any time soon. Guadamuz has now also posted an amusing blog post highlighting the next potential battleground: a cat who loves to take selfies. I mean, just look at them. While there are some clearer shots, I think this one is clearly the best, based entirely on the cat's "I'm concentrating here" tongue: Guadamuz notes that it's not entirely clear how much control the cat really has in these pictures, and they may really be the camera owner holding the camera itself, and snapping the photo when the cat is incentivized to reach in. In that case, there's a stronger copyright claim for the original camera owner -- an Instagram user by the username "youremahm". But, as Guadamuz notes, the real question is whether or not PETA will now sue on behalf of the cat.

Filed Under: animals, cats, copyright, peta, selfie cat, selfies
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

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 Goes After Assassin's Creed For Its Depiction Of Whaling; Ubisoft Responds With A Heaping Dose Of Sarcasm

from the it-doesn't-get-much-lower-than-being-mocked-by-Ubisoft dept

I'm not sure why it is that PETA feels it needs to pick fights with video games, but it continues to do so even after its last couple of efforts (vs. Pokemon [catch ALL the fake animals!] and Cooking Mama [dead animals for dinner!]) have backfired spectacularly. Its latest target is none other than the latest Assassin's Creed game, which, at this point, exists only as a trailer.

There's plenty of assassinating and plundering on the way, it would appear, but none of that bothers PETA. Nope, it's the fake killing of fake whales that has the group back in full statement-issuing pique. Here's what it had to say about the deadly digital whaling:

Whaling—that is, shooting whales with harpoons and leaving them to struggle for an hour or more before they die or are hacked apart while they are still alive—may seem like something out of the history books, but this bloody industry still goes on today in the face of international condemnation, and it's disgraceful for any game to glorify it. PETA encourages video game companies to create games that celebrate animals—not games that promote hurting and killing them.

I don't know which intern gets handed instructions to "write something angry" about video game animal abuse, but I can only imagine they're fairly resentful of the interns that get handed plum assignments to write about actual, real-world, horrific animal abuse. Statements like these, directed at fiction, make me believe there's some sort of "DAYS SINCE LAST OUTRAGE" board posted at the PETA office, and heads (HUMAN ONLY) start rolling if it passes single digits.

Ubisoft obviously felt this statement deserved a response, and handled it with all the dignity it could muster while still leaving room for plenty of withering, bone-dry sarcasm.

"History is our playground in Assassin's Creed," Ubisoft said in a statement to the publication. "Assassin's Creed IV: Black Flag is a work of fiction that depicts the real events during the Golden Era of Pirates. We do not condone illegal whaling, just as we don't condone a pirate lifestyle of poor hygiene, plundering, hijacking ships, and over-the-legal-limit drunken debauchery."

"And even if the game does glorify whaling — as it certainly glorifies the life of a pirate — I don't think it will lead to a generation of gamers who head to the Caribbean to hunt down humpbacks. Just as I don't think anyone who played the previous Assassin's Creed games have found employment as a murderer for hire."

Point: Ubisoft. Although honestly, scoring a point against manufactured outrage from one of the most prolific outrage manufacturers on the planet is a bit like putting one into your own net, in terms of effort. Still, the statement deserved a response, because (he said, mixing sports metaphors like a mad scientist with a handful of smoking flasks and beakers) if PETA's going to hang one directly over the plate, it seems a shame to pass up an opportunity to send it rocketing into the upper deck.

PETA could be a useful contributor to society if it would just focus on actual, heinous animal abuse rather than attaching bits of crazy to whatever happens to fall within miles of its actual purview. But it looks like it would much rather continue to cement its reputation as an "out there" special interest group only slightly more credible than "birthers" or conspiracy theorists utilizing numerology to detail the connection between gold prices, the Illuminati and the U.S. Fish and Wildlife Service.

Filed Under: assassin's creed, peta, promotional stunts
Companies: ubisoft

PETA Vs. Pokemon

from the wrongosaur-i-choose-you dept

It feels like it should be a strange dichotomy, my love for animals coupled with my absolute disdain for PETA, but it isn't. It essentially boils down to this: PETA has a good premise, anti-cruelty to animals, but the organization seems to like to ensure it won't be relevant by doubling down on the stupid and crazy. One needs only to look toward their recent foray into the .XXX domain world should one require a head-shaking exercise. They've also had occasion in the past to delve into the world of video games, such as when they created a parody of Cooking Mama, focused on having "Mama" kill animals for food.

But now, in an apparent attempt to win both the "Petty Award" and the first annual "We Don't Know The Video Games We're Protesting Award", PETA is now coming out against Pokemon, claiming that the game franchise teaches children to see real world animals as objects that should fight one another for our amusement.
In other words, PETA has decided that Pokemon's upcoming release of two new games is just grand enough to stand upon.

Much like animals in the real world, Pokémon are treated as unfeeling objects and used for such things as human entertainment and as subjects in experiments. The way that Pokémon are stuffed into pokéballs is similar to how circuses chain elephants inside railroad cars and let them out only to perform confusing and often painful tricks that were taught using sharp steel-tipped bullhooks and electric shock prods …if PETA existed in Unova, our motto would be: Pokémon are not ours to use or abuse. They exist for their own reasons. We believe that this is the message that should be sent to children.

It would be very easy to simply write this off as an attempt by PETA to put themselves in the headlines on the backs of a popular game franchise's latest release. Indeed, that is exactly what they're doing here, though they may want to recognize that there is such a thing as bad attention. However, it seems impossible not to call PETA out on the blatant stupidity of this move. First of all, at best, nobody cares. Anyone with half a brain knows that there is zero reason to correlate cartoonish animal universes like Pokemon to real-world cruelty. PETA might as well come out against the Teenage Mutant Ninja Turtles for fear that kids will go down to their local ponds, see a snapping turtle, and karate kick its face off for fear that the animal is going to steal their double-crust pizza. As a child of the 80's I can assure you that it only takes two or three times roundhousing helpless turtles to realize that they really aren't so bad and it's in fact you, said karate kicker, who is the jackass.

Second, it's brutally clear that nobody at PETA has bothered to actually play the Pokemon games. As Forbes notes, if they had, they would realize that the core theme of the universe is largely in line with their own views.

PETA seems to have missed the single biggest theme of the Pokémon series: That Pokémon should be treated humanely and live as our equals. The games are loaded with an endless stream of characters who go on and on about true friendship between man and Pokémon. It’s so saccharine and so completely the opposite of what PETA suggests that it boggles the mind.

So here's to you, PETA. You've managed to waste everybody's time while simultaneously proving you don't know what the hell you're talking about. Again. For ever and ever. Amen.

Filed Under: peta, pokeman, publicity stunts, video games

Is It Legal For A Clothing Company To Show President Obama Wearing Its Jacket?

from the it's-accurate,-right? dept

One of the trickier and more recent "intellectual property" (and I use the term loosely) rights out there is the "right to publicity" which was an odd sort of invention designed as a way for certain famous people to stop companies from putting their pictures in ads and imply endorsement. But there are some fuzzy borders here, especially when it comes to First Amendment free speech rights. Paul Alan Levy has an excellent discussion on two separate cases where publicity rights came up with regards to President and Mrs. Obama. In the first, PETA used Michelle Obama in an advertisement, as an example of someone who doesn't wear fur. In the second, sporting goods company Weatherproof used a photo of Obama wearing one of the company's jackets while he was in China to highlight the sort of customer they have. Levy points out that the White House was upset and complained about both uses, but likely had no legal right to complain:

As in the Michele Obama case, the White House complained, but everybody seems to agree that Obama won't sue, not just because presidents don't trifle with such litigation, but because Obama has no legal leg to stand on. He is a public figure and the ad is truthful -- Obama did, in fact, wear its jacket standing near the Great Wall...

That is not to say that PETA and Weatherproof ran no risk when they started these ad campaigns. When receiving questions from reporters, the White House could have released statements from her denouncing PETA for extremist opposition to the use of animals in medical testing ("she thinks it is better to test on animals first instead of using poor people and prisoners"). Similarly, the White House could have told reporters, oh yes, he did wear the jacket but later decided that it is a cheap and inferior product. But instead, the White House seems to be playing along, at least with PETA, by agreeing that Obama really does share PETA's position on furs.

Where it gets even more interesting, is that Levy notes that a reporter for the Washington Post pointed to the similarities with various media publications writing up some story about the Obamas solely to get an Obama photo on the cover, knowing that it would sell well. However, oddly, the Post reporter seems to think this is just fine for the media, but a problem when it's someone else:

What is interesting here is the assumption that it is (mis)appropriation when a political group does it and when a clothing company does it, but not when the media do it. But isn't is obvious that magazines were putting the Obamas on the cover to sell magazines? Givhan's article admits that -- she says, "no small part of the allure has been the sort of personal magnetism that connects with consumers as they bide their time in checkout lanes," and quotes PETA's preseident explaining, "It's hard not to look at her and feel good."

This, too, is a use of the Obamas' selling power to sell the products of companies' who have never received consent from the Obamas. In fact, political groups and companies as well as the media are constantly trying to associate themselves with a variety of famous personages, no matter what some "right of publicity" cases may say. It is high time to consider how far the right of publicity needs to be cut back, or whether it causes more trouble than it is worth.

Indeed. The deeper you look at the right of publicity, the more ridiculous and less justifiable it seems. It almost always serves to stifle free speech.

Filed Under: first amendment, michelle obama, peta, president obama, privacy rights, publicity rights
Companies: weatherproof