Did PETA Name the Right Macaque in Its ‘Monkey Selfie’ Lawsuit?

29 September 2015

From Motherboard:


Copyright claimed by David Slater and Naruto

On Tuesday, September 22, People for the Ethical Treatment of Animals (PETA) filed a lawsuit on behalf of a male Sulawesi crested macaque named Naruto, arguing that the monkey owns a copyright in the famous “monkey selfies.”

The lawsuit is against wildlife photographer David Slater, whose camera was used in the creation of the monkey selfies, and publisher Blurb Inc., which published a book of his photography.

In response to the unusual lawsuit, we asked a number of questions. One issue that was not, in the view of some readers, adequately addressed: How did PETA know the monkey in the photo was Naruto, or even that it was a male?

. . . .

Some coverage of the monkey selfie controversy last year identified the macaque as female. The photographer David Slater identifies the monkey as female in his book,Wildlife Personalities. PETA’s own president, Ingrid Newkirk, identified the monkey as female in a 2014 essay arguing that the monkey should own copyright in the photos.

Male Sulawesi crested macaques (also known as Celebes crested macaques and black macaques) are about twice the size of female macaques. They also have “enlarged canine teeth compared to females.” The monkey in the famous “selfie” photo does not have enlarged canine teeth compared to juvenile monkeys.

. . . .

Photographer David Slater told us in an email, “All you need to know is PETA have no proof they are talking about the same monkey. They hope you will buy into their stunt because an expert is willing to say her monkey is the one in my photos without proof. Engelhardt is bringing the Macaca Nigra Project into disrepute.” He added, in reference to the photos being posted on Wikipedia as being under the public domain, “And, WHY aren’t PETA suing Wikimedia for loss of royalties? Important question!”

. . . .

When we asked PETA’s general counsel, Jeffrey Kerr, whether Naruto knew about the lawsuit, he responded, “Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly.”

We also asked if Naruto knew whether the selfies existed. “I have the same response,” he replied.

We then asked whether a monkey could intentionally create a copyrighted work if he didn’t know the work existed. Kerr answered in the affirmative, later clarifying that “He was aware of the cause and effect relationship between pushing the shutter, his reflection in the camera,” but also insisted that we not report he said that the monkey knows his own selfies exist on the internet.

. . . .

For a deeper dive into the legal logic behind this lawsuit, the full interview with Kerr follows.


How was the monkey identified?

Naruto is known to the people who work in Sulawesi for the protection of the macaques [the Macaca Nigra Project]. They have known Naruto since his birth in November 2008, and when the story originally broke long ago, they were very much aware of, and recognized Naruto in the photographs.

. . . .

Note: Federal Rule of Civil Procedure 17(c)(2) says:

A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.

PETA is using this rule to represent the monkey in a federal district court.

. . . .

So, my understanding is that the Copyright Office has refused to register the photo, or one of the photos…

My understanding is that they’ve never been asked to register a copy of the photograph. I believe they’ve never refused. And the Compendium is the Copyright Office’s opinion on the state of law but is not authoritative. They’re not the legislative body, they are not a court. And we respectfully disagree with their view on that.

. . . .

How does an animal have standing in federal court on a copyright issue?

Well that’s what we’re arguing. It’s clear that the Copyright Act provides protection for authors of original works and it’s clear by Mr. Slater’s own admission that Naruto is the author of this work. And so we are representing Naruto as his Next Friend because he, like, other parties, can’t come to court on their own. But that is the issue that we believe Naruto should be given copyright protection in this photo in this case.

. . . .

So with all of these hypothetical animals, obviously Naruto is an interesting case because there aren’t many of these… But there are a few instances (where, for instance, elephants create paintings) in which animals have created art and that art is under Compendium rules, not considered copyrightable under US law. What are you basically proposing is that these animals be given copyrights in their work, and whatever organization rushes into the gap first gets to administer those copyrights.

Well, there’s several problems with your questions. First this case is only about Naruto and these monkey selfie photographs. I don’t know the facts and circumstances in which those other works were created, and I don’t know of any actual legal cases that have come down on that. And I’ve already covered that we respectfully disagree with the US Copyright Office’s opinion in their Compendium. But the facts are indisputable that Naruto took these photographs as his free autonomous intentional act that resulted in the original works fixed in a tangible medium. And that’s what the Copyright Act provides protection for. And so he should get that protection and the corresponding benefit for him and his habitat and their population because of the danger they face they need all the help they can get.

Does Naruto know about this lawsuit?


Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly. The issue is as I’ve stated it.

Does Naruto know about his selfies?


I have the same response.

Naruto certainly knew at the time that he was engaged in intentional conduct that is obvious from Mr. Slater’s own description of the situation. And Naruto clearly engaged in the purposeful intentional conduct that resulted in the creation of the selfies.

Link to the rest at Motherboard

Regarding PG’s use of the photo, he recognizes the copyright claims of both David Slater and Naruto. He believes his use of this photo, regardless of the creator, falls under Fair Use, an exception to the general rule that the author has exclusive rights to control the publication of his/her/its works.

PG won’t go through an analysis, but here’s the text of 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

PG will note that photos are an interesting fair use case under Factor (3) above because, unlike quoting from a written work, using a small portion of a photograph is usually not feasible. Displaying a slice of 10% of the macaque photo would not constitute a meaningful visual that illustrates the copyright issue in question.

Those interested in more information may find Fair Use in the Visual Arts, created by the Center for Media and Social Impact, of interest. A couple of excerpts follow:

The right to make fair use of copyrighted materials is a key tool for the visual arts community, although its members may not always choose to take advantage of it. They may still seek copyright permissions, for instance, to maintain relationships, to reward someone deemed deserving, or to obtain access to material needed for their purposes. But, in certain other cases, including those described in the Code, they may choose instead to employ fair use of copyrighted material in order to accomplish their professional goals.

Many members of the visual arts community employ fair use in their professional practices and many do so regularly. For instance, scholars and their editors employ fair use in the context of analytic writing (for example, in using reproductions of copyrighted artworks and quotations). Teachers rely on it—along with other copyright exceptions—to show images of works being discussed during class sessions, and, even more heavily, to provide relevant images for student use outside class. In the museum context, fair use may be employed in exhibitions and publications, and in a range of digital and educational projects. Artists may employ fair use to build on preexisting works, engage with contemporary culture, or provide artistic, political, or social commentary. And the entire visual arts community benefits from fair use when it enables enhanced access to archival materials. These are only some of the most common ways in which fair use is central to visual arts practice.

. . . .

Analytic Writing

Analytic writing focuses attention on artists, artworks, and movements; it includes analyses of art within larger cultural, political, and theoretical contexts. Such writing routinely includes reproductions, in full or in part, of relevant artworks in all media, texts, historical images, digital phenomena, and other visual culture. This material—much of it copyrighted—may be drawn from a variety of sources, including the collections of libraries and archives  (generally referred to here as “memory institutions”), notes and photographs taken by the writer, and documentary reproductions created or published by others; some works start out in analog formats and others are born digital. Sometimes the visual or textual works reproduced in connection with analytic writing are the specific subjects of analysis. Sometimes they are used to illustrate larger points about artistic trends and tendencies, or to document a particular point or conclusion. Such writing is published both within traditional academic venues and in ever-expanding venues beyond them. It may be published in a variety of formats, including print and electronic books and journals, exhibition catalogues, collection catalogues, blog and social media posts, and contributions to collaborative digital projects, such as wikis (which projects often reside in institutional repositories), or it may be delivered at academic meetings or on similar occasions. The effectiveness of analytic writing about art is improved by the reproduction of the materials that it references. In many instances, particularly for works of visual art, writers may conclude that reproduction of an entire work may be the most appropriate way to make their points.

PRINCIPLE: In their analytic writing about art, scholars and other writers (and, by extension, their publishers) may invoke fair use to quote, excerpt, or reproduce copyrighted works, subject to certain limitations:


  • The writer’s use of the work, whether in part or in whole, should be justified by the analytic objective, and the user should be prepared to articulate that justification.
  • The writer’s analytic objective should predominate over that of merely representing the work or works used.
  • The amount and kind of material used and (where images are concerned) the size and resolution of the published reproduction should not exceed that appropriate to the analytic objective.
  • Justifications for use and the amount used should be considered especially carefully in connection with digital-format reproductions of born-digital works, where there is a heightened risk that reproductions may function as substitutes for the originals.
  • Reproductions of works should represent the original works as accurately as can be achieved under the circumstances.
  • The writing should provide attribution of the original work as is customary in the field, to the extent possible.

Link to the rest at Fair Use for the Visual Arts

Pow! Appeals court assigns copyright to the Batmobile

25 September 2015

From Ars Technica:

“Holy copyright law, Batman!” So goes a line in the first paragraph of a federal appeals court ruling announcing that the iconic Batmobile is a character protected by copyright.

The 9th US Circuit Court of Appeals sided with DC Comics in its copyright infringement suit against Mark Towle, the operator of Gotham Garage, the maker of Batmobile modification kits.

“As Batman so sagely told Robin, ‘In our well-ordered society, protection of private property is essential,'” the three-judge court unanimously concluded.

. . . .

The San Francisco-based appeals court’s decision largely upholds a 2012 ruling . . . from a federal judge in DC Comics’ lawsuit that accused Gotham Garage of selling “unlicensed replica vehicle modification kits based on vehicle design copyrights from plaintiff’s Batman property, including various iterations of the fictional automobile, the Batmobile.”

. . . .

[T]he court held that copyright protection is not always available for every comic book, television, or motion picture character. The judges said it is available only for “characters that are especially distinctive.” And in the case of Eleanor and the Batmobile, those fictional vehicles qualify.

Batman nerds will appreciate the court’s three-prong analysis it used to determine whether a character or vehicle such as the Batmobile deserves copyright protection. The character must have “physical as well as conceptual qualities.” It must also be “sufficiently delineated” to be recognized as the same character whenever it appears. Finally, it must “contain some unique elements of expression.”

Link to the rest at Ars Technica and thanks to Ric for the tip.

‘Happy Birthday’ song copyright is not valid, judge rules

23 September 2015

From The Los Angeles Times:

In a stunning reversal of decades of copyright claims, a federal judge in Los Angeles has ruled that Warner/Chappell Music does not hold a valid copyright claim to the “Happy Birthday To You” song.

Warner had been enforcing its copyright claim since it paid $15 million to buy Birch Tree Group, the successor to Clayton F. Summy Co., which owned the original copyright. The song brings in about $2 million a year in royalties for Warner, according to some estimates.

Judge George H. King ruled Tuesday afternoon that a copyright filed by the Summy Co. in 1935 granted only the rights to specific arrangements of the music, not the actual song.

“Because Summy Co. never acquired the rights to the Happy Birthday lyrics,” wrote King, “Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.”

. . . .

Up until now, Warner has charged anyone who wanted to sing or play “Happy Birthday to You” — with the lyrics — as part of a profit-making enterprise. Most often, this occurred with stage productions, on television, in movies or in greeting cards. But even those who wanted to sing the song publicly as part of a business, say a restaurant owner giving out free birthday cake to patrons, would technically have to pay to use the song.

The complex saga of this six-note ditty has spanned more than 120 years, withstanding two world wars and several eras of copyright law. The song has seen the rise and fall of vinyl records, cassette tapes, CDs and now, the era of digital streaming music. 

. . . .

Tuesday’s ruling means that the song is now considered a public work and is free for everyone to use without fear of having to pay royalties, according to a statement from the plaintiffs’ attorneys.

Jennifer Nelson, a filmmaker and owner of Good Morning to You productions who was among the plaintiffs, called the decision a “great victory for musicians, artists and people around the world who have waited decades for this.”

The plaintiff’s attorneys have said that they will move next to qualify the lawsuit as a class-action, in an effort to recoup millions of dollars in royalties that Warner/Chappell has collected on the tune over the years.

Link to the rest at The Los Angeles Times and thanks to Ric and others  for the tip.

Mickey’s Copyright

22 September 2015

Science “Pirate” Attacks Elsevier’s Copyright Monopoly in Court

17 September 2015

From TorrentFreak:

Earlier this year publishing company Elsevier filed a complaint at a New York District Court, hoping to shut down the two portals. According to the publisher the sites willingly offer millions of pirated scientific articles.

The court has yet to decide on Elsevier’s request for an injunction and allowed the operators time to respond. This week, Sci-Hub founder Alexandra Elbakyan submitted her first response.

While Elbakyan’s letter doesn’t address the legality of her website she does place the case in a wider context, explaining how the site came to be.

“When I was a student in Kazakhstan university, I did not have access to any research papers. Papers I needed for my research project,” Elbakyan writes (pdf), explaining that it was impossible as a student to pay for access.

“Payment of 32 dollars is just insane when you need to skim or read tens or hundreds of these papers to do research. I obtained these papers by pirating them,” she adds.

As explained in an earlier interview with TF, Elbakyan then decided to help other researchers to obtain research articles, which eventually grew to become a library of millions of works.

Elbakyan continues her letter by informing the court that unlike in other industries, the authors of these papers don’t get paid. Elsevier requires researchers to sign the copyright over to the company and collects money from their work through licensing and direct sales.

“All papers on their website are written by researchers, and researchers do not receive money from what Elsevier collects. That is very different from the music or movie industry, where creators receive money from each copy sold,” she notes.

Researchers often have no other option than to agree because a career in academia often depends on publications in top journals, many of which are owned by Elsevier.

Link to the rest at TorrentFreak, and thanks to Nate for the tip.

Posted by guest blogger Meryl Yourish.

What Ever Happened to Google Books?

13 September 2015

From The New Yorker:

was the most ambitious library project of our time—a plan to scan all of the world’s books and make them available to the public online. “We think that we can do it all inside of ten years,” Marissa Mayer, who was then a vice-president at Google, said to this magazine in 2007, when Google Books was in its beta stage. “It’s mind-boggling to me, how close it is.”

Today, the project sits in a kind of limbo. On one hand, Google has scanned an impressive thirty million volumes, putting it in a league with the world’s larger libraries (the library of Congress has around thirty-seven million books). That is a serious accomplishment. But while the corpus is impressive, most of it remains inaccessible. Searches of out-of-print books often yield mere snippets of the text—there is no way to gain access to the whole book. The thrilling thing about Google Books, it seemed to me, was not just the opportunity to read a line here or there; it was the possibility of exploring the full text of millions of out-of-print books and periodicals that had no real commercial value but nonetheless represented a treasure trove for the public. In other words, it would be the world’s first online library worthy of that name. And yet the attainment of that goal has been stymied, despite Google having at its disposal an unusual combination of technological means, the agreement of many authors and publishers, and enough money to compensate just about everyone who needs it.

The problems began with a classic culture clash when, in 2002, Google began just scanning books, either hoping that the idealism of the project would win everyone over or following the mantra that it is always easier to get forgiveness than permission. That approach didn’t go over well with authors and publishers, who sued for copyright infringement. Two years of insults, ill will, and litigation ensued. Nonetheless, by 2008, representatives of authors, publishers, and Google did manage to reach a settlement to make the full library available to the public, for pay, and to institutions. In the settlement agreement, they also put terminals in libraries, but didn’t ever get around to doing that. But that agreement then came under further attacks from a whole new set of critics, including the author Ursula Le Guin, who called it a “deal with the devil.” Others argued that the settlement could create a monopoly in online, out-of-print books.

Four years ago, a federal judge sided with the critics and threw out the 2008 settlement, adding that aspects of the copyright issue would be more appropriately decided by the legislature.

. . . .

 But, of course, leaving things to Congress has become a synonym for doing nothing, and, predictably, a full seven years after the court decision was first announced, we’re still waiting.

. . . .

 Unfortunately, Google made the mistake it often makes, which is to assume that people will trust it just because it’s Google. For their part, authors and publishers, even if they did eventually settle, were difficult and conspiracy-minded, particularly when it came to weighing abstract and mainly worthless rights against the public’s interest in gaining access to obscure works. Finally, the outside critics and the courts were entirely too sanguine about killing, as opposed to improving, a settlement that took so many years to put together, effectively setting the project back a decade if not longer.

Link to the rest at The New Yorker and thanks to Dave for the tip.

Australian ‘copyright expert’ advocates perpetual copyright

5 September 2015

From Chris Meadows via TeleRead:

[T]he director of Australian National University’s Centre of Law and Economics, Dr. George Baker . . . has claimed that current copyright law is not strict enough, and that copyright should last forever.

. . . .

Perpetual copyright simply would not make any of the original creators more creative, and it would not help future creators build on their works. And as the EFF article points out with a link to one of my favorite Axis of Awesome videos (though it might have done better to link to Rob Paravonian’s “Pachelbel Rant” instead), once you start with the idea of eternal copyright, where do you stop? Should people still be paying royalties to the estates of Pachelbel and Shakespeare? (For that matter, since nobody really knows exactly who wrote the books that make up the Bible, that would make it one of the ultimate “orphan works.”)

Spider Robinson wrote a Hugo Award-winning short story also involving music and perpetual copyright, “Melancholy Elephants” (read in single-page format via Baen), which is commonly invoked whenever the question comes up. Robinson makes the case that we need an existing body of out-of-copyright work to draw upon, because we always build on what has gone before.

. . . .

In the end, I suppose we should be glad that we’re unlikely ever to have perpetual copyright—there are simply too many well-informed people out there who wouldn’t stand for it.

Link to the rest at TeleRead

Kindle Counterfeiting — A Growing Threat to Authors

24 August 2015

From Words on Words:

An insidious form of piracy is on the rise again, and you may already be a victim.

When Vancouver attorney and author Rebecca Merry Murdock checked Amazon listings for her debut book, she found something strange. The listing for her ebook version was not linked to her author page or the print version of her book. Amazon’s support team remedied the problem by linking the ebook to the print version and her author profile.

Weeks later, Rebecca noticed that a search for her book brought up an unfamiliar ASIN (Amazon’s unique catalog number).

An imposter had stolen the content of her book, uploaded it to Amazon, and created an exact duplicate of her real sales page. That imposter had been collecting royalties for the sale of Rebecca’s book. The imposter’s sale page was indistinguishable from the real one, and worse — it was now linked to her official author page.

And as a final insult, the counterfeit page appeared first when customers searched for Rebecca’s title.

. . . .

Although Amazon’s Anti-Counterfeiting Policy states that “if we determine that a seller account has been used to engage in fraud or other illegal activity, remittances and payments may be withheld or forfeited,” there is no indication that Rebecca will be compensated for months of stolen royalties.

Link to the rest at Words on Words and thanks to Andy for the tip.

Copyright Case Asks: What is a Cheerleading Uniform?

21 August 2015

From The Wall Street Journal Law Blog:


There can be an almost philosophical quality to copyright fights, which often deal with questions of essence and being.

A ruling handed down by the Sixth U.S. Circuit Court of Appeals in Ohio on Wednesday wrestled with an inquiry into the nature of outfits worn by cheerleaders.

The question before the appellate court was whether cheerleading uniforms are eligible for federal copyright protection.

Sixth Circuit Judge Karen Nelson Moore, who wrote the opinion, framed the case more enigmatically: “Are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?”

The dispute — an infringement claim by a uniform designer accusing another company of ripping off its designs (pictured above) — is a good example of how tricky it can be for courts to decide what is copyrightable.

Federal law says that for a work to be copyrightable it has to have some originality and be “fixed in a tangible medium of expression,” such as a canvas, film, a computer disc or even human skin. But things get extra complicated in cases involving three-dimensional objects.

How to distinguish between the mechanical or utilitarian aspects of an object and its artistic features is an unsettled area in case law. Only the latter is copyrightable. So, in an example offered by the U.S. Copyright Office in its manuals, the design of a chair cannot be copyrighted but a carving on the back of a chair can be. A T-shirt isn’t copyrightable but artwork printed on it is.

. . . .

“The district court concluded that a cheerleading uniform is not a cheerleading uniform without stripes, chevrons, zigzags, and colorblocks, and therefore Varsity’s copyrights are invalid,” the opinion says.

The Sixth Circuit opinion by Judge Moore disagreed. The court likened uniforms to fabric patterns, which can be protected by copyright. Wrote the judge:

To the extent that [the defendant] contends that pictorial, graphic, or sculptural features are inextricably intertwined with the utilitarian aspects of a cheerleading uniform because they serve a decorative function… we reject that argument. Such a holding would render nearly all artwork unprotectable. Under this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs….It would also render the designs on laminate flooring unprotectable because the flooring would be otherwise unattractive….Finally, holding that the decorative function is a “utilitarian aspect of [an] article,” would make all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection. But it is well-established that fabric designs are eligible for copyright protection…We therefore conclude that a pictorial, graphic, or sculptural work’s “decorative function” does not render it unable to “be identified separately from,” or “[in]capable of existing independently of, the utilitarian aspects of the article.”

Link to the rest at The Wall Street Journal (Link may expire) and thanks to Dave for the tip.

Russia Has Published Books I Didn’t Write

20 August 2015

From The Daily Beast:

A new foreign-language edition is normally cause for celebration in an author’s household. But in this case the news that two books have been published under my name by the Moscow publishing house “Algoritm” has prompted puzzlement mixed with consternation. One of them is called How the West Lost to Putin. The other is With Putin or without him: what awaits Russia in the next 10 years. I had no idea about either. Nor had my agents, Rogers Coleridge and White, who have dealt with 30-plus foreign-language editions of my previous books.

I am not the only recipient of this unexpected and unwanted compliment. My colleague Luke Harding, a former Moscow correspondent of the LondonGuardian, and my friend Don Jensen, a veteran cold warrior and commentator, have also had books published in their names. Rather more grandly, another book has come out in the name of Henry Kissinger.

It is hard to work out the justification for what looks like an act of intellectual piracy. “My” two books seem to be a collection of interviews and articles already published in other outlets. I may be mistaken, but I don’t think that Algoritm is going to find that a commercial bonanza. I did publish my first book, The New Cold War in Russian, but sales were modest. The effort of collating and translating less substantial bits of work would hardly be merited by the likely sales.

So it is more likely that the aim is propagandistic. The blurb on the publisher’s website says that: “Lucas expresses the views of that part of the British establishment which is negatively directed to the politics of the Putin regime.” The Kremlin’s spin machine wants to portray Russia as a besieged fortress surrounded by malevolent outsiders. How better to demonstrate that than by publishing an establishment jackal who yaps the tunes of the British establishment?

Link to the rest at The Daily Beast and thanks to Matthew for the tip.

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