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Monkey See, Monkey Shoot: Who Owns The Copyright?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

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Visual Image Protection: Who should own the copyright in a selfie that is composed, art-directed, and shot by a monkey? A new lawsuit has been filed here in San Francisco federal court by PETA seeking to have Naruto, the monkey, declared the "author" of his smiling selfie gone viral. What's more, the plaintiff in Naruto v. Slater wants the monkey to be designated the beneficiary of all royalties earned by the popular photographic image with proceeds to benefit the reserve where Naruto lives.

The photos were taken in 2011 when British nature photographer, David Slater, was on the Indonesian island of Sulawesi. He'd set up the camera and a tripod to photograph the macaque monkeys but, as monkeys are wont to do, Naruto started examining and playing with the equipment. The photos were later published by Slater in his book Wildlife Personalities, and Slater claimed to own copyright in the monkey selfies.

Slater's position is that he set the whole thing up and therefore was the "mastermind" behind - and therefore the "author" of - the photos. In fact, Slater said he left the camera unattended and hoped the monkeys would do what they did. Taken to its logical extreme, however, that may be like saying you locked Tolstoi in a room and hoped he'd write a novel, making you the "mastermind" behind the War and Peace (although it is a much more elegant solution than the proverbial million monkeys with a million typewriters).

There is at least some support for Slater's position. In the 1884 case of Burrow-Giles Lithographic Co. v. Sarony, the U.S. Supreme Court held that photographs are subject to copyright protection because of the artistic decisions made by the photographer in taking a portrait shot of Oscar Wilde. Those decisions include choosing the camera, lighting, angle, and wardrobe of the subject. Maybe only the first two of those items help Slater's claim of ownership.

On the other hand, Naruto selected - whether knowingly or not - such things as the camera angle, timing, level of focus, and framing of the photograph.

Meanwhile, the Copyright Office - which is considered authoritative but whose interpretations of copyright law are not binding on a federal court - has just recently pronounced in its Compendium of the U.S. Copyright Office Practices (3rd Edition) that any original work of authorship, including a photograph, can be registered "provided that the work was created by a human being." The Copyright Office cites photographs taken by monkeys and murals created by elephants as examples of such works it views as created by nonhumans and not eligible for ownership.

If PETA were to win in its suit, what could happen next? The Copyright Act says that the owner holds various rights, other than copying, such as 1) the exclusive right to create or allow others to create derivative works, e.g., a photographic collage, if not a movie, based on the original selfie, and 2) the right to terminate an otherwise life-of-copyright assignment or license after the passage of 35 years under 17 U.S.C Section 203. Naruto doesn't just need a trustee for the royalty stream. He needs an agent.

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