Tag: monkey selfie

Ninth Circuit Ends “Monkey Selfie” Boondoggle

If for no reason other than the fact that I’m out of monkey jokes, I’m pleased to announce that the Ninth Circuit Court of Appeals has finally put an end to PETA’s ridiculous litigation in which the organization alleged that the Sulawesi crested macaque in the photograph known as the “monkey selfie” is rightfully the owner of the copyright in the image. After photographer David Slater had his copyright—one could argue—stripped by the blogosphere, he was then forced to defend himself in this preposterous claim by the “animal rights” organization. So, I’m glad for his sake that this bit of absurdist theater is finally over.

Both the majority and concurring opinions focus primarily on PETA’s claim that it had standing in court to act as “next friend” on behalf of the named plaintiff—the macaque whom they randomly called Naruto. “Next friends” are typically representatives of individual claimants who cannot advocate for themselves—minors, mentally or physically impaired persons, or imprisoned persons. A “next friend” must show proper relationship to the allegedly injured party and that they are truly representing the injured party’s interests rather than some other agenda while posing as a “next friend.” In the concurring opinion, Judge Smith writes …

“Animal-next-friend standing is particularly susceptible to abuse. Allowing next-friend standing on behalf of animals allows lawyers [citation omitted] and various interest groups [citation omitted] to bring suit on behalf of those animals or objects with no means or manner to ensure the animals’ interests are truly being expressed or advanced. Such a change would fundamentally alter the litigation landscape. Institutional actors could simply claim some form of relationship to the animal or object to obtain standing and use it to advance their own institutional goals with no means to curtail those actions. We have no idea whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.”

And there’s this biting comment in the footnotes of the majority opinion …

“… in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” [citation omitted] PETA seems to employ Naruto as an unwitting pawn in its ideological goals.”

It is admittedly a little disappointing that the court rejected PETA’s standing to represent the monkey in this case only because it might at least have been entertaining to read the opinion of the court on the copyright claim itself. Don’t get me wrong, I think the proposal that an animal can own a copyright is facially absurd—straining at the boundaries of even the most extreme anthropomorphism. Still, it might have been fun to watch the court inquire how, for instance, this primate resident of Indonesia managed to register “his” copyright in the United States in order to be eligible for statutory damages. And that list goes on.

As mentioned in an older post, one of PETA’s fatal flaws is the assumption that ownership of a copyright implies only commercial exploitation and, relatedly, the kind of litigation it brought on behalf of “animals everywhere.” But that’s not what copyright means. Copyright means choice. It means the author may choose the manner in which a work is exploited, and since an animal cannot express that kind of choice—at least not in any language we understand so far—even if PETA had standing, it would find its claims swirling around an ever-widening drain of absurd logic.

Copyright is complicated enough without asking the courts to read the minds of animals. I’m glad we can finally move on from this one.

“Monkey selfie” photographer reportedly broke. And for what?

Photo sources by mrbrainous & artush

This is a story about how people with self-righteous and futile agendas end up harming creators for absolutely no reason—and even end up harming society in the bargain. I’ve made light of the “monkey selfie” case in past articles because it’s hard not to. I mean, there’s a monkey in it.  But for U.K. wildlife photographer David Slater, it’s no laughing matter, especially after the organization PETA decided to sue him on the grounds that the copyright in the photograph belongs to the crested macaque depicted in the image.  The Guardian reports that Slater is now financially broke as a result of defending himself in this ridiculous case, and it’s impossible to fathom an upside to any aspect of this whole story. But let’s back up a little …

In 2011, Slater was working on the Indonesian Archipelago on the island of Sulawesi, studying a troupe of black crested macaques. These animals are endangered, hunted for meat, and it is only because of photographers like Slater than many of us even know a damn thing about black crested macaques.  According to his own statements, Slater spent three days learning to use the animals’ natural curiosities to his advantage and then purposely set up the conditions by which the macaque in the “selfie” (a female he refers to as Ella), ultimately snapped her own image while he braced the camera on a tripod.

There is nobody—other than the monkeys themselves—who can refute Slater’s description of the conditions by which the photo was made; and as this is the only evidence available, his account would seem to tilt in favor of his ownership of the so-called “monkey selfie.”  Based on American case law in photography, from the seminal case (Sarony v. Burrow Giles, 1884) to the present, I don’t believe it is farfetched to expect that a court would hold that Slater made enough creative choices in the production of this photograph to affirm his copyright.  But even if I’m wrong about that, it’s not for me or any party other than a court to really decide. As such, I personally would not use the image, even though I can get away with it.

But Wikimedia took it upon themselves to litigate that decision internally and then made the “monkey selfie” freely available to the world via Wikimedia Commons, refusing Slater’s request to have the photo taken down from the site. By the time the “monkey selfie” controversy hit social media, the dominant narrative seemed to be that Ella had randomly stolen Slater’s camera and inadvertently snapped an image of pure happenstance, which does not square with Slater’s own story.  If this were the case, however, then Slater’s claim of copyright in the image would be very weak.

But unless there is some evidence to contradict Slater’s own account of how the image was made, Wikimedia had no grounds, other than its own bully-sized weight, to assert that the photo lacked any copyright whatsoever. According to The Guardian, Techdirt followed in kind, also refusing to take down the photo, and Mike Masnick published a few articles asserting the absence of a copyright in the image as though it were a settled matter.  But it wasn’t a settled matter. Neither Masnick nor the Wikimedia Foundation had any right to declare that Slater’s claim of copyright in the image was invalid, which amounted to these parties—along with every other entity that used the image thanks to Wikimedia—essentially saying, “So, sue me.”

Many who rail against the enforcement of copyright in the digital age, suffer from the delusion that they are always defending the little guy against corporate or state power.  Sometimes, this is true, but not nearly so often as they like to think.  In fact, many self-appointed defenders of “digital rights” trample little guys all the time, and without in any way acknowledging that they’re doing so. The point I want to stress here is that Wikimedia, Masnick, and others were standing on their own notion of principle; and it would not occur to any of these parties to consider a) the standard of “originality” in copyright is subtle; b) there may be more nuance to the author’s claim than they think; or c) when in doubt, some basic respect for the presumptive author of a work might be accorded.

That last thought about respect seems entirely anathema to the opponents of copyright, which is part of what makes this story so egregious. Wikimedia and Masnick were both making a point that served no purpose other than to advance a maximalist (yeah, I said it) anti-copyright view. And society did not benefit from any of this nonsense.  Instead of Slater licensing the photo and using the revenue to pay his bills and then set off on another expedition, he’s now deprived of revenue, and society actually loses whatever photographs he is now not capturing.  “If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I’m not,” says Slater for The Guardian.

Enter PETA

It is at least likely—though we probably can never know—that it was Wikimedia’s initial refusal to consider Slater’s copyright that ultimately brought the “monkey selfie” to the attention of PETA. In a certain sense, this might have been like PETA’s too-good-to-pass-up “Dancing Baby” moment.  A monkey took a selfie, and the story went viral?  How could they not seize such a golden opportunity for anthropomorphic evangelism and fundraising? Of course they had to assert that the monkey owns the copyright.  All they had to do was sue the photographer.  Sure, he might go broke defending himself, but screw him because PETA is opposed to humans “exploiting” animals by taking pictures of them in the first place.  (Spoiler: I don’t have any love for PETA).

Now, don’t get me wrong, I think the humane treatment of animals is important.  But if this organization is going to spend federal-lawsuit money arguing that an animal can own a copyright, this only proves that they neither understand copyright law nor really give a damn about the welfare of the animals themselves. In fact, if they just spent the litigation money on the macaques’ behalf, they’d do more good; but that isn’t what PETA seems to care about. What they seem to care about is evangelizing a maximalist view of animal rights and bringing attention to themselves. David Slater is just collateral damage in their agenda, never mind that he’s the only party in this whole fiasco who has actually done anything positive for this endangered species.

Some of the reporting about this story, like this article in The New Yorker by Jay Caspian Kang, places too much emphasis on button-pushing with regard to copyright in photography.  Even the photograph that affirmed the copyrightability of photographic works in the U.S. in 1884 was not captured by the owner pushing the proverbial button. The standard for consideration begins with the question of who made the creative choices—and this can be quite minimal—to produce the resulting image.  So, without much deliberation, the courts ought to be able to glance at precedent and conclude that unless a monkey, or any other fauna, can minimally express the choices or steps she took to produce the image created, there are no grounds for her owning a copyright.  Unsurprisingly, intellectual property is not available to creatures that have not developed a capacity for communicating complex concepts through language.

Still, as the PETA lawsuit now burns time and money at the Ninth Circuit Court of Appeals, what social interest can anyone say has been served by either the digital rights or the animal rights activists deciding that David Slater is not the owner of this photograph?  Slater is now looking for work other than photography to pay his legal fees; the macaques get nothing out of all this grandstanding; and zero progress is made in copyright law in any useful context.  I guess people can feel free to make Ella-the-Macaque memes on Facebook?  Right, they’ll do that anyway.

Yeah, this whole story is a joke. But it isn’t actually funny.

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.”