No More Monkey Business - US Federal Court Decides on Monkey Selfie Case

One of the more peculiar cases from 2014 was one involving a selfie taken by a monkey (now having been identified as Naruto), and whether that particular animal could hold the rights to the very photograph it took of itself without any intervention or instruction from the owner of the camera, David Slater (more on the case on this blog can be found here). While the question seemed to have an unequivocal answer, at least to this writer, the fight is all but over, and the District Court of Northern California had to decide the case at first instance.

Following the discussion in 2014 PETA filed a complaint asserting that Naruto, inter alia, was the author of the copyright work (the picture in question) and that animals would not, under the US Copyright Act, be excluded as authors. In their argument, as section 201 affords the ownership for copyright in an author or authors (sans any further definition or express exclusion of anything but human authors), "...to be an “owner” and, by extension, to have standing, the plaintiff need only allege to be the “author” of a disputed work". This is backed up by their argument that there is nothing unreasonable about granting standing to animals, referring to the lack of definition of a human requirement, and the possibility of affording copyright to corporations (i.e. non-human entities).

Bobo finally had an avenue of protection for
his vast collection of pictures of bananas

This case has now been resolved, with a clear rejection by Judge Orrick who presided over the case. The full text of his judgment has not been released, however, he did state during the hearing for the opinion that "...[he is] not the person to weigh into this... [and] [t]his is an issue for Congress and the president. If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that".

The minutes for the hearing further clarify this: "The Court announces the tentative opinion, in line with the Ninth Circuit’s opinion in Cetacean Community v Bush, that while Congress and the President can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act. The Copyright Office’s Compendium is consistent with the Court’s understanding". (links added)

Arguably, the case for animals' rights in copyright protected works seems far fetched at best, and this writer would wholeheartedly agree with Judge Orrick in this instance. While there is, potentially, a moral argument for the affording of rights to non-human animals, what this would do is open the floodgates for outlandish assertions of rights for animals and extend the remit of copyright beyond its (arguable) remit. Even if no express language is used to exclude other species from holding rights, it is difficult to give rights to those that do not understand them nor gain from the royalties themselves (as PETA would, undoubtedly, use the funds gained from those royalties on behalf of Naruto). In the end common sense should prevail, and only an express inclusion of animals' rights in copyright would create this possibility.

The case has truly been a novel one, and might still not be over if PETA decide to appeal the decision. This writer is incredibly skeptical as to the possibilities of their success, but would welcome any interesting discussion on the topic in or outside the courts.

Source: The Guardian

Monkey Business - When Copyright and Simians Collide

The law and the world surrounding it can often be dry and, quite frankly, boring to those who don't love it as most of us working within the legal profession. However, sometimes a topic comes through that permeates that misconception and brings the law and its impact into the discussion at large, often through more unconventional events. In this vein a question can be posed: can an animal own the copyright to a work? This writer for one had never considered this and found himself pondering it a bit longer than I would like to admit. Due to this extended contemplation this answer should be shared for those interested in the implications of animal artistry and copyright.

This issue came to light after an image of a macaques taking a 'selfie' was spread around the Internet, springing up a discussion of both copyright and whether the trend of the 'selfie' has well and truly gone too far. The photograph was taken with a camera which the monkey appropriated from David Slater, a nature photographer in his own right. After his acquisition of the camera the monkey took several pictures, a few of which turned out quite fantastic and display the monkey grinning and staring at the camera. The images were shortly thereafter uploaded to Wikimedia, and have remained there since as freely usable images, with Wikimedia firmly contesting any and all assertions of copyright in the pictures and argue they are in the public domain. As posed above the question still stands: can this monkey own the copyright to its 'selfie', or can Mr. Slater claim the rights over the picture even though he did not take the picture himself?

Rick wanted to ride the animal selfie fame train as well

Under the UK Copyright, Designs and Patents Act 1988 a work is only protected by copyright if it is created by an 'author', defined as "...the person who creates [the work]". Arguably, at least on the face of things, the monkey will have no rights in the pictures as animals are not 'persons' within the meaning of the Act, making the work ineligible for copyright. Although Mr. Slater owned the camera and potentially set up the photo he still does not own the copyright for the work as he himself did not take the photograph. Sometimes the final piece of the puzzle is the most important, especially in intellectual property law.

In the United States there is no real definition of an 'author' under US Copyright law, leaving the matter, on the onset, in limbo. However, through the guidance of the United States Copyright Office's Copyright Compendium, the term 'authorship' used in the US legislation "...implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable", and that non-human authors such as monkeys, therefore cannot hold the copyright to a work.

The photographer has since argued that the monkey "...was [his] assistant", potentially causing a case of joint authorship in the work or even affording the rights to Mr. Slater outright. Through his own admission Mr. Slater "...set the camera up on a tripod, framed [the shot] up and got the exposure right", giving the final shot to the monkey itself. Right from the start one has to be slightly incredulous about Mr. Slater's assertion here, and with no evidence bar his own word, as the monkey has refused to comment on the matter, his presentation of what happened has to be taken with a pinch of salt. Should he have effectively directed and set out the shot for the monkey he could potentially claim authorship, as framed by Brad Newberg: "If the photographer actually developed it in a certain way, made some tweaks, used some lighting to make some original choices, and said essentially 'Look at my collaboration with this monkey,' then he would have had some part of the creative process", and could potentially claim the rights to the work. In the end this would be a matter he would have to argue in court, and would be hard-pressed to do so.

So far the monkey's picture has lost Mr. Slater over 10,000 pounds since 2011, and clearly presents him with an incentive to pursue the matter further, especially due to the notoriety of the case at the moment. This writer for one would absolutely love to see the argument go into litigation and hopes Mr. Slater will pursue the matter further, if not just for the legal profession's enjoyment. The case would decide the rights of dozens of animals and who knows, maybe one of them will be the new big thing in nature photography.

Source: Ars Technica

Copyright in Space - The Space Oddity

The worries of the 21st century artist are ones which no other before them has ever had to contemplate, nor even conceive. Due to this some interesting results can unfold in the world of copyright. Unbeknownst to most of us, our outer terrestrial conquests just might impact our creative output, or at least limit it to some extent.

Major Chris Hadfield, a Canadian astronaut who recent spent almost a half a year in space, recorded and shared his take on the David Bowie song "Space Oddity", receiving well over 22 million views on YouTube for the duration of the video's existence on the site. This particular video was made while he was on board the International Space Station, and thus leads us to a peculiar question begging an answer: does copyright apply in space?

The ISS is regulated under the International Space Station Intergovernmental Agreement, which sets out the framework in which the Station and the law operates. Although many other agreements expand on the framework outside of the ISSIA, it is the more important one within this context. As space is potentially beyond any particular jurisdiction, with the added complication of the ISS moving at 7,6 kilometers per second over most countries at any given time, which laws would apply to govern Mr. Hadfield's rendition? According to Article 5 of the ISSIA: "...each [country] shall retain jurisdiction and control over the elements [of the ISS] it registers". This means that any modules, parts of the ship and so forth (called elements), will be under the jurisdiction of the country which owns it (including The United States, Russia, Japan, and Europe respectively). It has been determined by The Economist that the elements in which Mr. Hadfield recorded his famous video would be ones owned by the US and Japan, subjecting his video to the copyright laws of those particular countries.

Phil was busy filming his modern interpretive dance video

Mr. Hadfield's music video does not in itself present much of a legal issue, as the rights for the distribution and recording of the song were duly negotiated between all interested parties; however it still remains a curiosity in the field. The licence for the YouTube distribution of the song has since ended, yet a new agreement is being sought for the continuation of said agreement to satiate our extra terrestrial musical needs.

Nevertheless, space still remains a big question mark, especially in the emerging markets of space tourism and our conquest for Mars or other planets. As J.A. Sterling discusses more in-depth in his article "Space Copyright Law: the new dimension", copyright will face challenges when being applied to our future outside of our blue planet. More specifically, which country's or countries' laws will apply if the work in question is created wholly or partially on another terrestrial body, such as Mars? If the work is created on a space ship or station, much like in Mr. Hadfield's situation, the application of laws is much easier, or at least potentially so; however should you film a video on Mars, it is uncertain which country's laws would apply. This only scratches the surface in relation to the difficulties space can cause in relation to the creation of copyrighted works, and I would advise anyone interested in the topic to read the article above.

In the end the loss of Major Hadfield's song, no matter how eloquent and beautiful it is, is but a temporary bump in the video's existence, which will undoubtedly continue soon (or so one can hope). Space is, indeed, the final frontier - or is it? Only out future beyond the comforts of our home planet will show where copyright will go, or how far at least.

Source: IP Brief