Return of the Macaque

Animal rights charity PETA has filed a  federal lawsuit in San Francisco seeking to vest copyright in that infamous 'Monkey Selfie' in the crested black macaque who snapped the image with photographer David Slater's unattended camera.  PETA - People for the Ethical Treatment of Animals - is suing on behalf of the macaque, dubbed Naturo, claiming he is the author of his selfies allowing Peta to administer all proceeds from the photos for the benefit of the monkey, and other crested macaques living in a reserve on the Indonesian island of Sulawesi:  "While the claim of authorship by species other than homo sapiens may be novel, 'authorship; under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto," PETA said in the suit.

The The U.S. Copyright Office has already addressed the dispute in the latest draft of its “Compendium Of U.S. Copyright Office Practices”, which was published on August 19th. The previous compendium stated that “Materials produced solely by nature, by plants, or by animals are not copyrightable.” The new 1,222-page report again makes their stance on animal artwork clear by referring specifically to photographs taken monkeys (and other species of course). “[T]he Office will refuse to register a claim if it determines that a human being did not create the work." Jeffrey Kerr, a lawyer with Peta, told the Guardian that the copyright office policy “is only an opinion”, and the US Copyright Act itself does not contain language limiting copyrights to humans.

It waxs hard enough to work out who 'owned' the infamous Ellen DeGeneres Oscar's selfie. But a monkey? 

PETA have used the courts before but not with any great success: In 2011 PETA filed a lawsuit against marine park operator SeaWorld, alleging five wild-captured orca whales were treated like slaves. A San Diego court dismissed the case

At the end of 2014, the appeals court in New York state said that a caged chimpanzee called Tommy could not be recognised as a "legal person" as it "cannot bear any legal duties" although the Nonhuman Rights Project say the state has previously conferred legal "personhood" status on domestic animals who were the beneficiaries of trusts, as well as extending rights to non-human entities such as corporations. Similarly in 2007 an Austrian Supreme Court refused to appoint a woman as legal guardian of a 26 year old chimpanzee called Hiasl as he was not a person, in a case that was referred to the European Court of Human Rights. Interestingly in December 2014, in another case brought by the Nonhuman Rights Project, a court in Argentina allowed a claim for habeas corpus - for orang-utan Sandra - who had been born in captivity and was being held at Buenos Aires Zoo - finding she deserved the basic rights of a non human person, including the right to life, liberty and freedom from harm, and pending appeal should be released to a sanctuary; but does that extend to the right to copyright authorship one must ask?

In this case, Slater licensed the image to the Caters News Agency, and Slater argued that he had "engineered" the shot, and that "it was artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken" and claimed copyright. The photographs were uploaded to Wikimedia Commons and the website listed the selfie photograph as being in the public domain on the grounds that it was the creation of an animal, and not a person. Slater requested that the Wikimedia Foundation, the owners of Wikimedia Commons, either pay for the photographs or remove them from Wikimedia Commons: His claim was rejected by the organisation, which determined that no one owned copyright as the monkey was the author of the photograph.

The results of the 1709 reader's poll into who owns the 'black macaque image can be found here -  52%  of 1709 readers polled thought that "there is no copyright in works authored by animals: they are a gift to humanity which we can all use" although 30% thought that only humans are authors so the photographer owns the copyright as the nearest relevant human" - and aurelia J Schutlz's 2011 opinion can be found here.

Over on the IPKat, Lucy Harrold examines how the case would proceed under the provisions of the Copyright Designs & Patents Act here in the UK - opining (just as a starter) that as the monkey is neither an individual nor a body corporate so on similar facts in the UK, its case would fall at the first hurdle, before turning to the somewhat complex issues of authorship. well worth a read.

Orang-utan image: "Orangutan-bornean" by Julie Langford - Own work. Licensed under CC BY 3.0 via Commons - https://commons.wikimedia.org/wiki/File:Orangutan-bornean.jpg#/media/File:Orangutan-bornean.jpg

Return of the Mack by Mark Morrison here

New animal selfie ALERT!

a camera hogging koala

Last weekend staff at Edinburgh Zoo have managed to get a series of selfies from Koala bears which have surfaced online and in the press - and some other species also managed to get  in on the act with selfie's from f penguins, rhinos, wallabys, hippos and a binturong. The Scottish zookeepers decided to re-enact the celebrity selfie phenomenon by placing small RE cameras made by HTC smartphones in the animal's pens. The cameras were activated by a grip sensor and started shooting as soon as they were ‘picked up’ - or touched - by the animals  - "making it easy for the furry friends to get the hang of".

So can we expect another epic battle along the lines of the legal claim photographer David Slater instigated? It was Slater whose camera was seemingly stolen by a black macaque monkey. You will remember the monkey then took some selfies - but further use of the snaps prompted Slater to take on Wikipedia who published one photo without Slater's permission. 

Top snapper Mr Binturong

Interestingly the Edinburgh Zoo photos, posted on the Express website, seem to have a credit (possibly a copyright credit) on them, and are marked 'SWNS' - which I am guessing stands for South West News Service - the UK news agency that supplies editorial copy and pictures to national and international clients. The Express also has a link to a series of other animals selfies which contain the credit 'Marcus Bird/ Barcroft media'.  The SWNS website itself restricts re-use of material posted on that website but I couldn't find any koalas generated images there (although I did find plenty of other animals) nor were the zoo selfies apparent on the SWNS twitter feed -  so I suspect the pictures were sent out as a news feed. The zoo pictures can be found on the Scotsman - credited to 'Hemedia', Reveal had the copyright notices of '(c) HTC' on all the shots and the Irish Examiner marks them all 'Edinburgh Zoo'. 

Another copyright conundrum?  It seems the cameras were provided by HTC, and Ben Walsh from HTC told the Scotsman: “We know the most popular thing on the internet is funny pictures that owners take of their pets so at HTC were glad we’ve made a camera so brilliant and simple that animals can finally join us humans and start taking selfies too. With koalas taking the most pictures of themselves, expect to see their Instagram feeds full of koala selfies”. This statement, and the actions taken by the Zoo in releasing the photos, seem to indicate that the photos were freely distributed - and that they are currently free to use.  Jon-Paul Orsi, digital manager for the Royal Zoological Society of Scotland, is quoted in one article saying “We do a lot of our own photography on-site and these shots offer something completely different.

So, the zoo selfies (or 'zoofies') are currently being treated differently to the copyright in the case of the black macaque where Slater threatened legal  action. The koala snaps seems to be being treated more like the Ellen DeDegeris / Bradley Cooper 'Oscars' selfie which prompted much academic debate - much sharing, tweeting and publication - but as far as I know, resulted in no legal actions against those who subsequently used the shot. In fact I found the webpages of London PR Firm Hope & Glory who had this to say: "It’s been a day of formidable coverage for the HTC team here at Hope&Glory.Having come up with the idea a month or so ago of handing some HTC RE Cameras to the animals (and their handlers) at Edinburgh Zoo, we got our shots back last week and it’s been all systems go making sure that the shots were to be seen just about everywhere during today" adding "The fact that we decided to hold the story until Australia Day, knowing that we had a couple of Koala shots in our armoury, was also no coincidence." So whoever owns the shots - they WANT everyone to use them! But with all those conflicting copyright notices, I still wondered what (if any) 'copyright' restrictions had been put on the koala and penguin selfies.

Does Mrs Penguin get the credit?

But does it matter what 'permissions' have been given or withheld anyway?  Our own poll on the monkey snaps showed that 52%  of 1709 readers polled thought that "there is no copyright in works authored by animals: they are a gift to humanity which we can all use" a view seemingly shared by the US Copyright Office, although 30% thought that only humans are authors so the photographer owns the copyright as the nearest relevant human". Just 6% wanted to give copyright to the monkey. Opinions on ownership of the 'Oscars' selfie ranged from the copyright being owned by Bradley Cooper who pressed the button, to being owned by DeGeneris who assembled the photo (so perhaps DeGeneris was the person who made the arrangements necessary for the creation of the work), perhaps joint ownership by all of the featured stars, owned by Sponsor Samsung who provided the phone, or owned by the Academy of Motion Pictures Arts and Sciences who staged the event and could possibly claim ownership under contractual agreements and under the 'work for hire' doctrine.

But MIGHT there be more of a copyright claim on the facts here - well more than Mr Slater has or had? My own personal feeling is that the author has to be a person and that person still has to be a human (although there have been conflicting opinions on this blog). Maybe just maybe there might be a human involved in the issue of ownership of copyright here - but which human? The HTC cameras in the zoo were set up to be triggered by animal movement or touching - rather than the Macaque case where it seems the monkey actually took the photo by pressing a button and it appeared holding the camera (just like Bradley). Does HTC have a claim to ownership of copyright in the selfies? It also seems that some of the cameras were positioned to take certain shots at certain angles or with certain backgrounds in frame, and this might tend towards suggesting the person or persons who did the setting up might own a copyright. So perhaps the handlers have a claim? Or perhaps the Zoo can claim ownership as this was 'work for hire'? We also don't know about editing of any of the koala selfies (eg by cropping, colouring, re-positioning): if there has been editorial input, this might again pass a copyright to a human. Mr Slater belatedly let it be known that he had set up the camera the monkey used  - and had also amended the shots as he sought to establish ownership of the macaque snapped selfie. But so far, to no avail;  but maybe things are different here? So maybe here IF copyright became as issue it IS possible one or more persons might be the author. 

These conclusions may (or may not) not be agreeable to the 5% of our readers who felt that with the black macaque snap, "Whichever human gets to it first can keep it, just like any other bona vacantia" or those who commented on earlier blogs  - or the 4% who felt that "The United Nations should set up a special agency to own and control uses of all non-human works like this" or the aforementioned. And I have to disagree with the 6% of readers who felt "The monkey owns the copyright: she's the author, after all". It seems unlikely is that Mr Penguin or Mrs Koala will be an author in the United Kingdom anytime in the near future - and I am still of  the opinion that there is no copyright in works authored by animals and that "they are a gift to humanity which we can all use" although the efforts of the campaign group Nonhuman Rights Group, whilst unsuccessful in New York and Austria, were more successful in persuading  a court in Argentina to allow a claim for habeas corpus for Sumatran orang-utan Sandra - who had been born in captivity and was being held at Buenos Aires Zoo - finding she deserved the basic rights of a non human person. So maybe a monkey (and koala) copyright soon!

Binturongs are a species of, errrm, bearcat from South East Asia by the way -  but what you may ask is a 'Lert' ? Well, there I cannot help - I can't even discover what species it is. I need a nicely illustrated Wikipedia page to tell me. I live in hope.

Image: http://thoseposters.com/index.php

That poor macaque: 1709 Blog readers say there is no copyright in her selfie

Alas: not much too
laugh about
copyright-wise

Following the huge debate generated by *that* macaque selfie, on 14 August last our own blogmeister Jeremy launched a poll asking 1709 Blog readers about their copyright-related thoughts [but can there be thoughts which are non-copyright-related? This will probably be one of our next polls] regarding that photograph: is there copyright in it? If so, who owns it?

The poll ended yesterday and received 354 responses [thanks so much to all those who took the time to vote!].

The results are well summarised here, but for the sake of completeness, here's what our readers think:

• "The monkey owns the copyright: she's the author, after all". This is true for just 24 readers (6%). 
• "Only humans are authors so the photographer owns the copyright as the nearest relevant human", say 107 readers (30%).
• "There is no copyright in works authored by animals: they are a gift to humanity which we can all use". This is not just the opinion of the US Copyright Office [see §306], but also of 187 readers (52%).
• "The United Nations should set up a special agency to own and control uses of all non-human works like this", is the ambitious suggestion of 16 voters (4%).
• "Whichever human gets to it first can keep it, just like any other bona vacantia" is the opinion of 20 readers (5%).