Angels and Monkeys at Appeals Court

Photo sources by artush & prudkov






Readers can be forgiven for focusing on court news other than copyright stories these days, but lest you think all the fun is emanating from the White House, here are two items of note this week…

VidAngel Appeals Injunction

The Ninth Circuit, in the spotlight for ruling against Trump’s executive order known as the travel ban, heard oral arguments on June 8 in the Disney v. VidAngel case. As described in this post, VidAngel’s business model is effectively a Video On Demand (VOD) service that provides filtering for consumers who want to see mainstream fare without “objectionable” scenes that might include sex, nudity, profanity, blasphemy, and (I don’t know) rainbows?

The studios sued on the grounds that VidAngel’s model violates the rights of reproduction and public performance under Section 106 of the Copyright Act as well as prohibitions against “ripping” DVDs under Section 1201 of the DMCA. VidAngel has tried to argue that its business model is legal because its customers have the right to “filter” under the provisions of the Family Home Movie Act (2005). In December of 2016, the District Court for the Central District of California granted an injunction, pausing VidAngel’s activity, holding that the studios would be expected to prevail on the merits across all triable issues. VidAngel then appealed that injunction to the Ninth Circuit.

As Ashley Cullins reports for The Hollywood Reporter, a hot mic captured Judge Carlos T. Bea whisper to his colleague Andrew D. Hurwitz, “I think this one’s a lot easier,” meaning, of course, in contrast to the travel ban debacle, but quite possibly indicating that the District Court’s injunction will be allowed to stand. Attorney Donald Verrilli, counsel for the studios, stated, “What they’re essentially saying is ‘if we filter, we can stream without a license.’” And that about sums it up. Meanwhile, he also was clear to state that his clients are not opposed to filtering as permitted by the FMA, adding that technology provider ClearPlay, which enables home filtering, filed an amicus brief on behalf of the studios.

Assuming the injunction is sustained and the case is remanded for trial, it will be interesting to see if VidAngel’s executives decide that their evangelical mission is more important than a return on investment. Because it seems quite clear that there is nothing legal about their business model.

Who Knew Copyright for Monkeys Was Still in Play?

In a more extreme example of ideologically-charged litigation, also on appeal at the Ninth Circuit, it turns out that the organization PETA (People for the Ethical Treatment of Animals) is still ape over the idea that a primate can own a copyright. For anyone who missed it, the animal rights organization, in September of 2015, sued British photographer David Slater and US publisher Blurb on the grounds that both had infringed the copyrights of a Sulawesi black crested macaque who apparently snapped her own photograph with Slater’s camera. Under the circumstances, Slater’s copyright ownership of the image was called into question by the Wikimedia Foundation and was debated online—in good faith and bad—by various constituencies.

In my view, Slater’s claim has merit if, as described on his blog, he purposely set up the camera and used what he’d learned about the monkeys’ curiosity to create the conditions for the selfie to be made. He writes …

“I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play.  I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens.  I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens.”

Based on American case law to date, this non-attorney thinks that should be sufficient to hold that Slater owns the copyright, whereas if the camera were in fact picked up serendipitously by the macaque and snapped—conditions that would almost never produce the image in question, by the way—Slater’s claim would probably be very weak under U.S. law. Regardless, only PETA would think to argue that the monkey herself can own a copyright; and in their complaint, they relied on the testimony of primatologist Dr. Antje Englehardt as a “next friend” of the monkey plaintiff.

As of last week, however, counsel for the defendants have stated that PETA should be viewed by the court as lacking the standing to represent the macaque’s interests in light of the fact that Dr. Englehardt was recently arrested for harassing PETA’s lead counsel. “Regardless of the merits or outcome of the criminal case against Dr. Engelhardt,” write Slater’s attorneys, “its very existence is a relevant consideration on whether PETA can adequately represent the interests of Naruto,* notwithstanding the documented animosity that has developed between PETA and Dr. Engelhardt.” Okay but…

A “next friend” in common law is a person who represents another person because the latter is either a minor or has been deemed incompetent—not because he/she has been deemed a monkey! While pundits like Mike Masnick at Techdirt focus attention on the non-existence of any copyright in the “monkey selfie” (which is debatable as described), what is unquestionably non-existent in this case is any animal’s standing to enforce a copyright in U.S. court.

This was made quite clear when Judge Orrick of the California District Court for the Northern District stated that he could find no evidence in the statute that animals are entitled to own a copyright in the United States. That ought to about settle the matter. Because, frankly, whether one takes a utilitarian view of IP, a natural rights view, or some combination of the two, Orrick’s holding should seem forbiddingly tautological for most plaintiffs, even those with the anthropomorphic zeal of PETA.

*PETA has named the macaque “Naruto,” though Slater states that the monkey is a female others have named “Ella.”

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