More about the Monkey and the Selfie

The New Media Entertainment blog of August 18, 2014 http://blogs.duanemorris.com/newmedialaw/2014/08/18/are-copyrighted-works-only-by-and-for-humans-the-copyright-planet-of-the-apes-and-robots/ attracted a new blog reader, David Slater. He’s the photographer who had contested Wikimedia’s view that certain images of a monkey weren’t copyrightable because it believes that the monkey authored the images.

Mr. Slater wrote us to assert “…that these images were ALL taken on a tripod with a cable release, with the camera’s settings configured by myself, the tripod positioned such that the angle of lighting lit up the monkey nicely and the background was not distracting.”  I appreciate learning Mr. Slater’s point of view.

Certainly, determining the answers to questions surrounding non-human copyrights will be very fact specific, to see if photographers, monkeys and other animals, and robots have a tripod to stand on. In this new copyright/animal realm, it would be unsurprising if particular allegations of facts are challenged and disputed in court, as well how to apply the Copyright Act.

This is good place to mention that the Copyright Office on  August 18, 2014 issued the new draft of the third edition of its Compendium of U.S. Copyright Office Practices.  Essentially, the Compendium is the inside baseball rulebook on how the Copyright Office implements the Copyright Act via its internal practices.

Of special note in the intersection of animals and copyright, is the statement in the Compendium that “A musical work created by solely by an animal would not be registrable, such as a bird song or whale song.” Further, the draft Compendium gives as an example of an uncopyrightable work:  “A photograph taken by a monkey.”

As non-humans (especially via artificial intelligence) create commercially viable (to the humans) works, these questions will be increasingly important – more significant than animal copyrights. The laudable movement for animal rights may well stop short of granting them copyrights. Perhaps a pioneering Border Collie or Australian Labradoodle who becomes a best-selling author may inspire statutory changes, but for now that’s the state of the law.

The full list of works that the Copyright Office considers  uncopyrightable works follows. Fascinating for a student of copyright like me. The text below consists of quotations from the draft Copyright Compendium:

306 The Human Authorship Requirement

The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

Examples:

• A photograph taken by a monkey.

• A mural painted by an elephant.

• A claim based on the appearance of actual animal skin.

• A claim based on driftwood that has been shaped and smoothed by the ocean.

• A claim based on cut marks, defects, and other qualities found in natural stone.

• An application for a song naming the Holy Spirit as the author of the work.

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

Examples:

• Reducing or enlarging the size of a preexisting work of authorship.

• Making changes to a preexisting work of authorship that are dictated by manufacturing or materials requirements.

• Converting a work from analog to digital format, such as transferring a motion picture from VHS to DVD.

• Declicking or reducing the noise in a pre-existing sound recording or converting a sound recording from monaural to stereo sound.

• Transposing a song from B major to C major.

• Medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment.

• A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern.

Mark A. Fischer is a partner at Duane Morris LLP. His law practice is focused on solving problems and making deals for innovative companies, institutions and individuals. Mr. Fischer’s clients are typically in the creative industries such as new media, social networking, music, interactive entertainment, information technology, software, television, publishing, fashion, industrial design, and toys. He has particular experience in U.S. and international copyright, entertainment, licensing, celebrity representation, copyright litigation, arbitration, open source, privacy and trademarks. He has a growing client base in the biotechnology and medical industries. You can read his professional biography here: http://www.duanemorris.com/attorneys/markafischer.html. He may be contacted at: mafischer@duanemorris.com.

“I Told the Waiter There Was a Fly in My Soup!” – A Little More Freedom for User Outrage on Yelp and other Social Media Sites

“The worst meal I ever had. And the service sucked, too.” Can you legally say that kind of thing about a restaurant on social media sites like Yelp? Those long, eye-glazing terms of service (sometimes called “terms of use,” “end-user terms of service,” etc.) in websites that express your rules of behavior sometimes state that you can’t say derogatory things about a business without violating those user terms. The text of such user terms can ramble on forever and obviously go unread by most customers. When is the last time you thoroughly read the Apple iTunes user agreement?

It’s important to note that U.S. courts typically do uphold website user terms when they are challenged. For example, an Arizona federal district court stated in a 2009 case referring to a non-disparagement clause, that “[u]nder Arizona law, courts generally enforce boilerplate language or clauses in non-negotiated, standardized contracts.” Serious stuff. Continue reading

Are Copyrighted Works Only by and for Humans? The Copyright Planet of the Apes and Robots

Why should humans own all the world’s copyrights? The question is prompted by a photograph that’s made worldwide news. In Indonesia, a female crested black macaque monkey picked up a camera owned by photographer David Slater. I won’t focus much on the story of the monkey and her selfie because that topic has already been well-discussed in the media. Yet the story sets the table for more intriguing and ultimately more important issues.

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Blockbusters, Behemoths, and In-Betweeners – The Changing Entertainment Business

What are the most notable recent changes and trends in the entertainment business? Not all of the changes are due to our friend the Internet, although that is obviously playing a very big part. Many motion picture industry figures have commented that we are headed to a future of still more big budget movies dominating the marketplace at very high movie ticket prices. Are the big boys and girls of show business going to win the lion’s share of revenue in the future?

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The Six Million Dollar Tweet

tweet is limited to 140 characters, but a picture might be worth six million dollars. Actress Katherine Heigl, who rose to Hollywood stardom on the medical drama television series Grey’s Anatomy, is suing the Duane Reade pharmacy chain for tweeting her image.

At some point a paparazzo took a picture of Heigl carrying Duane Reade shopping bags on her way out of the pharmacy. Duane Reade found it on a celebrity gossip website. On March 18, 2014, Duane Reade included the image in a tweet that read, “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.

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You Are Too Beautiful – Photoshop and Advertising

An article in Fashionista this week raises a provocative issue. Is it false advertising to use digital imaging software, such as Adobe’s Photoshop, to enhance photographs of people modeling cosmetic products and services, making the models look even more beautiful than they do in real life in order to sell these products and services?

According to the Fashionista article, Seth Maitlins, a citizen advocate and former marketing executive from Los Angeles, with the help of the Eating Disorders Coalition, has spearheaded the introduction of a bill in Congress called the “Truth In Advertising Act of 2014,” H.R 4341.

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The Little Antenna That Could? Aereo in the Supreme Court

The Little Antenna That Went to the Supreme Court

Call it “the little antenna that could.” Remember the classic rabbit ears that topped television sets? Now there is a miniature version that doesn’t look like a rabbit but moves very fast. A new device developed by Aereo, Inc. provides access to live TV online for local channels within a given coverage area. Using an array of tiny dime-sized antennas, the system makes it possible to watch television without a television set. For a rate currently around $8-12 per month, subscribers can view and record live television broadcasts over the Internet through mobile electronic devices. Since its inception in 2010, Aereo’s online television playback system has expanded into 11 major U.S. media markets and garnered the company nearly one hundred million dollars ($100,000,000) in funding. This expansion has also earned the small startup company the enmity of major broadcasters and a date in the U.S. Supreme Court.

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Whose Motion Picture Is It Anyway — Does the Actress Own the Motion Picture?

It was the casting call that would make her name known, but it didn’t bring the kind of fame for which she was hoping. In July 2011, Cindy Lee Garcia landed a minor role in a motion picture that was to be called “Desert Warrior.” She received four pages of the script, performed her role, and was paid $500 for three days of acting. Little did she know, this brief performance would make her the center of an uproar in the Islamic world.

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Do You Own Your Music Playlist?

Is a playlist as protectable and as valuable as a song? When I was on a panel at Harvard Law School a decade ago and first heard the notion that a DJ’s playlist was just as valuable as a song, I couldn’t believe it. I recognized the value in a playlist but still felt that there was something especially creative and valuable in a song in contrast to the act of curating songs of others. Today the DJ electronic dance music culture is strong and growing stronger, making the question of playlist ownership even more relevant. Playlists are valuable but are they protectable under copyright law?

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How Long Should You Wait to Sue for Copyright Infringement?

Suppose that you’ve created something copyrightable. You’ve gone through the process of registration with the Copyright Office and followed the renewal procedures (if they were necessary). You learn that someone is infringing your copyright. You seek the advice of your lawyer, who sends a cease and desist letter to the infringer. How long can you wait before you have to sue? The answer, it turns out, is a complicated one.

The issue is currently under consideration by the Supreme Court. In January, the Court heard oral arguments from parties in the case of Petrella v. Metro-Goldwyn-Mayer, Inc. A decision is expected by June 2014. Ms. Paula Petrella is the owner of the copyright of a screenplay that served as a basis for the classic Martin Scorsese 1980 film Raging Bull. Ms. Petrella’s father, Frank Petrella, had written the screenplay with his friend, boxer Jake LaMotta (the eponymous Bull). Raging Bull is widely considered one of the greatest films of all time, and resulted in an Academy Award for Robert DeNiro for Best Actor.

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