Monkey See, Monkey Do, But Judge Says Monkey Gets No Copyright

from the sorry-folks dept

A few weeks ago, we wrote about some details from the court hearing in the ridiculous monkey selfie case in which PETA (the People for the Ethical Treatment of Animals) claimed not only that it represented Naruto, an Indonesian macaque monkey, but that the monkey should hold the copyright on this selfie:

However, as we’ve explained time and time again (much to the chagrin of David Slater, the photographer whose camera was used to take the photo), the photo is clearly in the public domain, as it’s long been held that the Copyright Act only applies to human authors. In court a few weeks ago, the judge made it clear he didn’t believe PETA had any case at all, but Judge William Orrick has now come out with his written opinion in the case explaining his reasoning why. Not surprisingly, it more or less tracks with what he said in court: there is no evidence that the Copyright Act applies to monkeys, and thus, case dismissed — with leave to amend. The judge cites numerous cases in which the courts clearly say the Copyright Act means a “person” when it refers to author… and PETA cited a grand total of zero cases that argued otherwise:

Here, the Copyright Act does not ?plainly? extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit have repeatedly referred to ?persons? or ?human beings? when analyzing authorship under the Act. See, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) (?[A]n author superintends the work by exercising control. This will likely be a person who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be.?) (internal quotation marks, citations and modifications omitted) (emphasis added); Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997) (?For copyright purposes, however, a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].?) (emphasis added); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (?As a general rule, the author is the party who actually creates the work, that is the person who translates an idea in a fixed, tangible expression entitled to copyright protection.?) (emphasis added). Despite Next Friends? assertion that declining to grant a monkey copyright to a photograph ?would depart from well-established norms,? Next Friends have not cited, and I have not found, a single case that expands the definition of authors to include animals.

And the judge is also convinced by the Copyright Office rejecting non-human copyrights as well:

Moreover, the Copyright Office agrees that works created by animals are not entitled to copyright protection. It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014 (the ?Compendium?). ?When interpreting the Copyright Act, [the courts] defer to the Copyright Office?s interpretations in the appropriate circumstances.?… In section 306 of the Compendium, entitled ?The Human Authorship Requirement,? the Copyright Office relies on citations from Trade-Mark Cases, 101 U.S. 94 (1879) and Burrow-Giles to conclude that it ?will register an original work of authorship, provided that the work was created by a human being.?… Similarly, in a section titled ?Works That Lack Human Authorship,? the Compendium states that, ?[t]o qualify as a work of ?authorship? a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.?… Specifically, the Copyright Office will not register works produced by ?nature, animals, or plants? including, by specific example, a ?photograph taken by a monkey.?

And thus, sucks for Naruto (and PETA):

Naruto is not an ?author? within the meaning of the Copyright Act. Next Friends argue that this result is ?antithetical? to the ?tremendous [public] interest in animal art.? … Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act?s authorship requirement, and guidance from the Copyright Office, they have not.

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Comments on “Monkey See, Monkey Do, But Judge Says Monkey Gets No Copyright”

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110 Comments
Capt ICE Enforcer says:

Absolutely horrible ruling

This is absolutely horrible. Now monkeys will not have any incentive to create masterful artworks. It was bad enough that the life of a monkey is usually less than 20 years. Which means that a monkey would only get 90 years max for copyright protections. If I was a monkey, I would go on strike. They should be compensated for all their hard work writing books, singing hit songs, and creating masterful artwork thru the use of brush and photograph. We are about to experience a new dark age.

Roger Strong (profile) says:

Re: Absolutely horrible ruling

From Wikipedia: “The Monkees have sold more than 75 million records worldwide and had international hits, including “Last Train to Clarksville”, “Pleasant Valley Sunday”, “Daydream Believer” and “I’m A Believer”. At their peak in 1967, the band outsold the Beatles and the Rolling Stones combined.

No wonder they haven’t produced any new hits lately.

Andrew (profile) says:

Re: Other animals...

by the act of strapping the camera to the monkey, you’re essentially dictating the framing of the shot as being a ‘monkey-POV’, thus you have creative input into the shot.

That was not the case here, as the camera was left unattended, and the monkey controlled both the framing (handled and pointed it at will) and the timing (the shutter operation)

Of course, later, after he was turned down by the copyright office, Slater went and changed his story, claiming he deliberately set the camera up to be taken (giving him the element of creative input needed to get a copyright interest)

Of course, that would be fraud, so…..

JoeT says:

Re: Re: Re:3 Other animals...

To clarify, the US doesn’t require registration to receive a copyright either. The usual Berne rules apply.

However, if you do register, you get some extra benefits, like the right to statutory damages and a presumption of validity. Most people who commercially exploit their works register them in the US.

John says:

Re: Re: Other animals...

How can a money frame an image if it was fastened to a tripod?

Also, Slater has the images registered at the US Copyright Office, so how was he turned down?

I think you are referring to press stories and not real interviews or Slater’s own writings on the affair.

Newspapers are not reliable sources. However, the tripod was mentioned on the same day as the Daily Mail piece, from which people seem to rely too heavily on.

Thus, the camera was set by the photographer to record a background that had elements of choice within it. I also believe Slater set the controls and allowed the monkey to play with camera.

This is how it happened, and unless you were there can’t say how things happened.

For you to say that the monkey controlled everything only highlight that you are a simpleton that believes newspapers (very sad) and that monkeys can turn a heavy DSLR camera onto themselves. You try it and go figure.

nasch (profile) says:

Re: Re: Re: Other animals...


For you to say that the monkey controlled everything only highlight that you are a simpleton that believes newspapers (very sad) and that monkeys can turn a heavy DSLR camera onto themselves.

A pro DSLR and pro tripod probably weigh something like 10-20 pounds. These are pretty good sized monkeys, and they’re strong enough to climb trees with ease. I doubt they would have any trouble maneuvering a camera.

You try it and go figure.

It’s quite easy with my consumer grade DSLR and tripod. Have you tried it?

John says:

Re: Re: Re:2 Other animals...

You’re comments are trolish and simply not worth a reply. It does seem that Techdirt and its crowd have absolutely no idea about photography or cameras.

Sulawesi macaques are about the size of small dogs. Simply do your research – if you know what that is you idiot.

You will argue against all facts for artwork to be free. I bet you have all stolen artwork for your own benefit.

nasch (profile) says:

Re: Re: Re:3 Other animals...

Sulawesi macaques are about the size of small dogs.

OK, they’re smaller than I thought. I still maintain your claim that they would be incapable of maneuvering an SLR on a tripod to be unsupported, not to mention the claim that it was on a tripod to begin with is dubious.

Simply do your research – if you know what that is you idiot. You will argue against all facts for artwork to be free. I bet you have all stolen artwork for your own benefit.

I’m the one who’s trollish and not worth responding to? You seem to have completely misunderstood everything about this situation. Can you point to anyone arguing “artwork should be free”?

Anonymous Coward says:

Re: Re: Re:3 Other animals...

“You’re comments are trolish and simply not worth a reply. It does seem that Techdirt and its crowd have absolutely no idea about photography or cameras.”

It’s not like anything about copy protection laws make sense anyways so what’s the point?

“You will argue against all facts for artwork to be free.”

and this is a very good reason copy protection laws should be abolished. Their intent should not be to prevent artwork from being free. Their intent should be to promote the progress of the sciences and useful art, to expand the public domain so that we have more free works, and to serve a public interests. That you have perverted it into something self serving is reason to abolish it. If you can’t demonstrate that an aspect of copy protection serves a public interest then it should be abolished. Making something cost money that would otherwise be free is not a public interest.

Interestingly you aren’t even arguing in favor of the artist here (the artist which, btw, you really don’t care at all for). You are simply stating that you think works should cost money for the sake of costing money. Which is not how the law should be intended.

“I bet you have all stolen artwork for your own benefit.”

A: It’s not stealing it’s infringement

B: Hollywood has a long history of infringement. Hollywood was even built on infringement. Don’t think that IP extremists don’t still infringe like crazy for their own benefit while trying to impose these ridiculous laws on others.

C: Since copy protection laws are so convoluted and difficult not to break there are probably people that inadvertently violate it.

D: I bet you have robbed a bank for your own benefit.

Typical IP extremist mindset thinking that people are guilty until proven innocent and that an accusation is sufficient to presume guilt until innocence is proven. You should be in jail now until you can prove to me you haven’t robbed that bank.

Anonymous Coward says:

Re: Re: Other animals...

Similar to the “strapping the camera to the monkey” question above, I could technically argue that leaving the camera in a cage is the positioning, etc. of the device with the intent to capture the behavior of the animals therein (i.e., would they grab it and take photos). I think this suit is ridiculous but there is a slippery slope of intent. Suppose I take 100 cameras and intentionally leave them in a cage of 100 monkeys as a real experiment – I maintain I own all those photos taken by the monkeys (and if needed, I could call it a documentary), using the previous argument belong to me at least. Photos belonging to the monkey, however, is weak and makes no sense. Animals, at least in our culture, have no property rights.

John says:

Re: Re: Re: Other animals...

Correct, you would be the copyright owner of the photos taken by the 100 monkeys, unless the owner of the captive monkeys objected. Interesting that the monkey in the selfie shots are wild and have no owners.

A monkey taking a photo of a camera placed on a tripod by a photographer will automatically grant the human photographer copyright.

There’s no slipery slope either. Copyright is essential for the continuation of creativity and financial gain by those that have such skills. Any slippery slopes are those created by freetards that wish to see copyright destroyed for their own advantage.

Anonymous Coward says:

Re: Re: Re:2 Other animals...

Copyright is essential for the continuation of creativity and financial gain by those that have such skills.

Copyright is not essential for creativity, and if anything it tends to inhibit creativity because of the fear of infringement. As to financial gain, the people who make the most financial gain from copyright are the middlemen publishers, labels and studios, and if they cannot survive without copyright there are alternative ways of publishing using the Internet.

Anonymous Coward says:

Re: Re: Re:4 Other animals...

You do realize that for most of human history people have been free to copy and adapt every bit of culture without requiring permission. Copyright was an invention of the the printers, who required protection when they committed months of work to produce thousands of copies before they could sell a single copy.

Anonymous Coward says:

Re: Re: Re:4 Other animals...

[Citation needed]

Remember, copy protection is a privilege (the government provides it) and if you want special privileges that have social costs (monopolies reduce aggregate output, their enforcement costs money, and the people and institutions subject to these laws are paying by giving up their natural rights) the burden is on you to prove your case.

nasch (profile) says:

Re: Re: Re:2 Other animals...

Correct, you would be the copyright owner of the photos taken by the 100 monkeys, unless the owner of the captive monkeys objected.

The monkey owner would have no standing at all with regard to copyright.

A monkey taking a photo of a camera placed on a tripod by a photographer will automatically grant the human photographer copyright.

Do you have any court cases or copyright office guidance to prove that?

Copyright is essential for the continuation of creativity and financial gain by those that have such skills.

Citation needed.

nasch (profile) says:

Re: Re: Re:4 Other animals...

Citation is both the US and UK copyright laws.

Neither of those citations support your claim.

Do you have any court cases citations that states a photographic work that owes its origin to a human is NOT copyrightable?

You seem to have missed the story. This work was ruled, by a court of law, to have been created by an animal, not a human. Your weasel phrase “owes its origin to” is not based in copyright law and has no bearing on the discussion. You’re trying to make it sound like a person created the photo, but that isn’t what happened. The photo also “owes its origin to” the camera, the camera manufacturer, the memory card in the camera, its manufacturer, the monkey, and the sun which provided the light for the photo. But none of them get a copyright on it either.

You have not a single idea about copyright have you?

The irony is strong with this one.

That One Guy (profile) says:

Re: Other animals...

No, in that case there would be a clear eligible copyright owner, the human who attached the camera(s), and by that act deliberately set up the situation where the resulting filming would follow.

In this case, Slater’s own description of the event, and what made the photo of note, made it clear that it was purely by accident that it happened, and he had no creative input regarding it at all, hence no copyright.

John says:

Re: Re: Other animals...

Slater’s description is on his own website and makes no mention of the famous images being accidental.

What seems accidental was the events that led up to the famous selfies. A money stole his camera and took some blurred shots. This gave Slater the idea they may take a self-portrait if set on a tripod etc.

Get your facts right.

Andrew (profile) says:

Re: Re: Re: Other animals...

yeah, amazing that the description on HIS OWN SITE says nothing about them being accidental. I mean it’s not like he could have changed that at some point…

Quite at odds with his statements to press at the time which says

‘One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy, said Slater, 46.
‘At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection.
‘They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button.
‘The sound got his attention and he kept pressing it
‘At first it scared the rest of them away but they soon came back – it was amazing to watch.
‘He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn’t worked that out yet.
‘I wish I could have stayed longer as he probably would have taken a full family album.’

In fact, if you look at the wayback machine, his story first appeared on his sitesometime before Feb 6 2015, but AFTER August 16 2014. Funny that. Especially since guess what happened in August 2014? That’s right, that’s when the US Copyright office issed the new guidelines saying ‘photos by a monkey’ can’t be copyrighted.

BTW, other reason we know the tripod story is crap? Because some of the original photos he released, would have required said tripod to be under 3 inches tall. Just look at the very last one on the Daily Mail page, you can see the camera is pretty much at ground level, no tripod (also arms length, not THAT heavy). They also have other photos ,including one of slater trying to get his camera back. Hell, even the famous selfie is heavily angled, which indicates, you got it, NO TRIPOD. You know, since they can be heavy in themselves, and they would drag the shot ‘straight’, or force a tip-over if on the ground at that angle.

Remember this, Slater’s a nobody photographer who got lucky when the camera was taken. This photo is, in his own words, worth a lot of money. Yeah, can TOTALLY see why he has no reason to lie about things.

John says:

Re: Re: Re:2 Other animals...

Your quotes are from a newspaer. Can you prove that the journalist writing those quotes actually interviewd David Slater? Or are you like 99% of the idiots on here and believe everything you read?

And what is more telling is that you can’t even use the wayback site to discover that the story on Slater’s site dates back to at least September 2011 if nor before (Wayback only takes random snapshots). My God, even the idiots at Wikipedia seem to have linked to the Slater’s site from 2011.

You are floundering in your own waste product here. Just give up making a jackass of yourself.

Anonymous Coward says:

Re: Re: Re:3 Other animals...

So you’re saying that all these newspapers are committing libel and making up interviews wholecloth?

Well then he should sue them for damages, because clearly their lies are costing him his IP.

Or maybe, just maybe, he’s the liar, and he can’t sue the newspapers because they’re telling the truth.

That One Guy (profile) says:

Re: Re: Re: Other animals...

As Andrew above notes, Slater’s story has changed over time, from ‘I had nothing to do with it, it was entirely accidental’ to trying to claim that he set the shot up when he realized that if he didn’t do anything then he had no copyright over the photo.

Given he has a vested financial interest(can’t demand fees from people using a public domain pic) in making it seem like he deliberately(rather than accidentally) created the situation that resulted in the photo being taken, I’m going to assume that the original story, when he hadn’t yet realized that it meant no copyright for him, is the true one.

John says:

Re: Re: Re:2 Other animals...

Citation of Slater please where he says (and not from a moron like Masnick) the image came about entirely by accident? I have seen no such reference.

Does anyone remember that this story was fun in 2011? Why would Slater ever make the boring and dry points to how these photos came about?

He did so in 2001 on his website, as evidenced by Wayback. He even says he did not want fame and refused interviews! Thisis, because in his own words, he didn;t want fame and wanted the story to be about the monkeys.

From what I read on techdirt, i can only conclude you are a load of talentless image thieves wanting an argument about copyright to justify your own Communist ideas (property is wrong and art should be free for all)

Andrew (profile) says:

Re: Re: Re:3 Other animals...

Citation of Slater please where he says (and not from a moron like Masnick) the image came about entirely by accident? I have seen no such reference.

How about every news story at the time. Or how’s about the press release BY HIM saying that. And he did a few interviews.

Oh, and I linked the wayback machine, his ‘I set it up’ story didn’t appear until late 2014, after his rejection by the US Copyright office.

nasch (profile) says:

Re: Re: Re:3 Other animals...

Citation of Slater please where he says (and not from a moron like Masnick) the image came about entirely by accident? I have seen no such reference.

Willful ignorance?

http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borrows-photographers-camera.html

“‘One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy’, said Slater”

David says:

Re: Re:

Yes, that’s the corporate view. In fact, it is their view that money should have every right. Because there is no right if you cannot enforce it, and money buys weapons.

Before the monkey has the mental facilities for avarice and weapons, he’s out of the game.

If there is intelligent non-human life here or anywhere else, they’ll consider humanity the Earth crime syndicate. And trying to clamp down on a shared culture, shutting down the one thing humans have going for them, is not going to help the impression.

Eldakka (profile) says:

Re: Inc.

Corporations can own copyrights, however (IANAL) I don’t believe a corporation can create a copyright. Most of the terminology being used around the creation of this copyright seems IMO to be able to be summed up as “only a natural person can create a copyright.”

A corporation is not a “natural person”, it’s just “a person”. (there’s an interesting Wikipedia article on where this whole “a person” vs “a natural person” came from.)

Usually in employment contracts with corporations, there are contractual terms that pass on the copyright of any work created while employed by the corporation to the corporation. Therefore a natural person created the copyrights (i.e. did the creative work over which there are copyrights), with the ownership, via contractual agreement, being transferred to the corporation. Therefore the corporation itself is not an actor, therefore it did not create the copyright.

Therefore creating a corporation would still not solve the issue of which actor created the copyright in the first place. The actor would still be the monkey, which not being a person (let alone a natural person) can not imbue its works with copyright status, therefore there would be no copyright to transfer to the company.

Anonymous Coward says:

Re: Re: Inc.

Most of the terminology being used around the creation of this copyright seems IMO to be able to be summed up as “only a natural person can create a copyright.”

May I suggest that you’re using words in a very peculiar fashion here?

“Copyright”, in the United States, is a limited statutory monopoly created by Congress under the authority of Article I, Section 8.

17 U.S.C. § 102(a)

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression . . .

Other sovereigns may create copyright. Among the more famous examples, the statute enacted in Great Britain in the 8th year of Queen Anne (1710) created copyright under the authority of the Queen-in-Parliament.

Please don’t confuse copyright with a work of authorship.

Whatever (profile) says:

A interesting side note on this is that creating “all the songs possible” using a computer in order to claim copyright on them wouldn’t work any more – because the works would not able to be copyright (no author).

The future is without copyright, for we will not create anything outselves! Techdirt Utopia achieved in our lifetimes!

Whatever (profile) says:

Re: Re: Re:

A sequencer isn’t the same, because it’s not the whole song or expression. It would only be part of it. However, it you tried to obtain a copyright on a “song” that was performed only by a sequencer stand alone, you may find it impossible – no human artist involved.

My point was more related to the guys who were talking about using a computer to generate all of the potential songs / melodies in the world, copyrighting them, and making everyone pay every time they tried to use them in another song. That wouldn’t work because the computer generated music wouldn’t in itself be able to be copyright. Without a human as part of the creation on an individual case basis, this judge would suggest no copyright would be granted.

Anonymous Coward says:

Re: Re: Re: Re:

It would only be part of it. However, it you tried to obtain a copyright on a “song” that was performed only by a sequencer stand alone, you may find it impossible – no human artist involved.

A sequencer is not an automatic music generator, but rather an automatic performer, with a human composing the sequence. Therefore the music can be copyrighted and licensed by the composer, just like any other music.

tqk (profile) says:

Re: Re:

If you don’t add positive value recognized by those party to a relationship, you’re not symbiotic; you’re parasitic. Figuring out an angle by which you can get a cut of others’ action is far better achieved by thieves, conmen, and various other forms of organized criminals. Lawyering mouthpieces can babble all they want about their necessity, but it doesn’t make it rise above the level of charlatan amateur.

Either grow up and find a valid reason to exist, or you’ll deserve to go the way of the alchemists. We already have philosophy and science. Professional liars are not necessary for anything nor anyone. Criminals do what they do far more efficiently and at much lower cost.

Anonymous Coward says:

Re: Re:

If only. Except the computers powerful enough to do this will certainly be owned by corporations, so all they need to do is have their congress puppets change the law so that corporate-owned-computer generated music is copyrighted to the corporation.

Copyright is the ultimate tool of the corporate controlled dystopia.

Anonymous Coward says:

Re: Re:

I am still waiting for you to answer my question about whether you think that artists that have their works falsely taken down should receive at least the same protections as IP holders that have works infringed upon.

https://www.techdirt.com/articles/20160129/07144833457/commerce-department-wants-to-fix-some-worst-problems-copyright-law-reform-crazy-damages.shtml#c280

Do you care more for the artists or the IP holders (ie: the distributors).

Of course your refusal to answer is quite telling. You refuse to answer exactly because you don’t care at all for the artists and are only concerned with the distributors.

Bob C (profile) says:

There are more Monkeys in PETA than in the Forest

PETA is notorious for engaging in harebrained schemes for attention. They ask for donations, convincing the gullible urban fools that they will save every living creature in the milky way, when in fact they do nothing other than spend it on their lavish travels and numbskull endeavors. PETA sghould be protected by PETA since it is clearly a confederacy of primal beings deserving of the help of humans……

Paul Alan Levy (profile) says:

Right result, bad decision

Although I certainly agree that plaintiff should lose the case, the loss should be under 12(b)(6) (no valid claim) and not 12(b)(1) (no jurisdiction because no standing). The judge basically says that there is no “standing” because an animal cannot be an “author,” hence cannot own a copyright. But that just means that there are no rights to enforce here. It is a very different situation from the Cetacean case that the judge cites, where the court said that, regardless of whether there has been a violation, the plaintiff in this case lacks the ability to complain about it

Paul Alan Levy (profile) says:

Re: Re: Right result, bad decision

The lack of a cause of action does not mean that there is no jurisdiction to decide whether there is a cause of action. My point is that Judge Orrick was incorrect to say that there was no jurisdiction. The Ninth Circuit also got this point wrong in Bell v. Hood and was reversed by the Supreme Court. https://supreme.justia.com/cases/federal/us/327/678/case.html

Anonymous Coward says:

Re: Re: Re: Right result, bad decision

My point is that Judge Orrick was incorrect to say that there was no jurisdiction.

From p.3 of Judge Orrick’s opinion:

The Ninth Circuit has stated that Article III “does not compel the conclusion that a statutorily authorized suit in the name of an animal is not a ‘case or controversy.’” Cetacean Cmty. v. Bush (9th Cir. 2004). I need not discuss Article III standing further, because regardless of whether Naruto fulfills the requirements of Article III, he must demonstrate standing under the Copyright Act for his claim to survive under Rule 12(b)(6).

From Cetacean:

Defendants moved to dismiss the Cetaceans’ suit under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. Without specifying which of these rules was the basis for its decision, the district court granted the motion to dismiss. . . .

We therefore conclude that dismissal under Rule 12(b)(6) for failure to state a claim was correct, and we affirm the district court.

Please go back to where you said:

It is a very different situation from the Cetacean case that the judge cites…

I’m not sure I’m quite following your argument.

Anonymous Coward says:

Re: Right result, bad decision

… the loss should be under 12(b)(6) (no valid claim) and not 12(b)(1) (no jurisdiction because no standing).

In the ordinary course, the court is required to consider 12(b)(1) before 12(b)(6), yes?

If the court doesn’t have jurisdiction, then the court ought to just say so—and then bail out. No jurisdiction means no power.

Karl (profile) says:

Re: Right result, bad decision

Although I certainly agree that plaintiff should lose the case, the loss should be under 12(b)(6) (no valid claim) and not 12(b)(1) (no jurisdiction because no standing).

I’m not sure what your point is exactly, because it appears that the case was dismissed under 12(b)(6):

regardless of whether Naruto fulfills
the requirements of Article III, he must demonstrate standing under the Copyright Act for his
claim to survive under Rule 12(b)(6).[Emphasis added]

Anonymous Coward says:

How long before people acknowledge that PETA isn’t real?

It’s a paid-for company that advertises products by manufacturing ‘outrage’.

e.g they took 10 million dollars from Nintendo to claim they were angry at ‘cooking mama’ during its re-release.
They’ve made over 50 million from Mcdonalds by staging fake ‘protests’ whenever a new burger or other food item comes out….
They took money from various suit manufacturers to demonstrate against wool claiming it was breaching the rights of sheep….etc etc etc…

John says:

Re: Re:

I agree.

PETA also invent monkey personalities, for example it would seem that the evidence that Naruto exists is absent form PETA.

Slater’s website claims that Naruoto is “a fraudster”, lucky not to be in jail. Surely PETA should be made to prove that the monkey they got into court actually exists!

PETA expolit animals for their own publicity stunts, much like Techdirt exploits photographer’s works for their own commercial gain.

David says:

Re: Re:

Shrug. Why would they bother? They can still sell the originals. Who is going to proudly declare “I own a reproduction of something painted by an elephant”?

“Resting nude” (one of a whole set of paintings of the same scene/model, arguably the best one) by Modigliani was recently sold for more than $100mil.

You think it would have garnered that price without all the advertising by free photographs of it circulating the net?

Monkey photographs are more problematic than elephant paintings: from a photograph, there are only reproductions. So there is no “original” to “own”.

This was already the case for “analog” photography even though you could at least own the negative from which reproductions were made. With digital photography, physically owning the original medium is a moot point. At least until somebody cooks up some DRM scheme for screwing over people’s use of their own possessions (like ineffectively but annoyingly done with CD/DAT/MiniDisc digital copying).

Andrew (profile) says:

Re: Monkey Selfie

Because camera ownership has nothing to do with it, and never has.

In TV and film, most cameras are rented, so the people that make films don’t own them.

The law requires input of creative effort to get a copyright interest. owning a camera doesn’t count as a creative input. I’ve got some video cameras I borrowed from friends (was ) and did the camera owners get the copyright? No, I did, the person who placed the cameras, and started and stopped them. It doesn’t matter if you put financial stuff into it, if you paid for hte camera, or if you bought the plane tickets and hired the guide and the jeep. The copyright belongs to the entity that set the framing and the moment (by aiming the camera and defining when the shutter would act). That’s the ONLY thing that defines this specific shot. Now, both of those things are by the monkey, and so copyright would go to the monkey, except they’re not capable of holding a copyright, thus it defaults to the public domain.

It’s really very simple.

I mean your argument could say ‘the owner of the photo is Nikon, because if Nikon didn’t make the camera, there wouldn’t have been a camera to take the shot’
or
‘The owner of the photo is the guide, because if the guide didn’t take him there, then there’d be no shot’
or
‘the owner of the photo is the monkey, because if he didn’t grab the camera and then start pressing the button, there would be no specific photo’.
Oh wait, that last one is the one that was actually relevant to the photos at hand. And the only one the law recognises.

And hell, here’s something to really mess with your argument. What if Slater just bought the camera on an account (say a hire-purchase, or there was a lien on it?) and so didn’t actually own it himself?

Impact on the composition of the shot = copyright interest.
Impact on the circumstances that allow for any number of shots to potentially be taken = absolutely zero copyright interest.

Don’t know how many times and articles and references to the law, and case history, etc. that need to be made, before this point is gotten.

John says:

Re: Monkey Selfie

Well said. I have not seen the originals and I don;t think anyone else has either. The infringed image heading this article is a derivative works.

No acknowledgement of the photographer (Slater), use of the whole works, detrimental to the financial effectiveness for the photographer, no element of Fair Use.

Mike Masnick is an infringer, willfully so, and because of this he is also liable for criminal prosecution.

Karl (profile) says:

Re: Re: Monkey Selfie

No acknowledgement of the photographer (Slater)

According to Slater’s (original) account, he was not the photographer. The monkey (presumably Naruto) was the photographer. But monkeys can’t hold a copyright, so this work is in the public domain.

But even if Slater were the photographer, acknowledgement has nothing to do with copyright infringement. People who upload a Metallica song to the Pirate Bay “acknowledge” that Metallica is the author. Do you think that they’re not infringing?

And, even if this were the case, pretty much every single story about this saga has “acknowledged” Slater. So, you’re simply wrong.

use of the whole works

Even assuming the copyright goes to Slater (which it doesn’t), use of an entire image does not mean it’s not fair use.

detrimental to the financial effectiveness for the photographer

Copyright does not arise from the exertion of labor. See e.g. Feist v. Rural.

no element of Fair Use.

Every element of fair use. The photo was used for commentary and news reporting, both of which are explicit examples of fair use in the statutes.

Mike Masnick is an infringer, willfully so, and because of this he is also liable for criminal prosecution.

Willfully displaying a picture is not the same as willful infringement. Even if it were (which it’s not), and even if this were not fair use (which it is), it violates only the display right. That is at most a misdemeanor under criminal copyright law.

You really have no idea what you’re talking about.

Anonymous Coward says:

wasted opportunity

This photographer could have made a name from himself as the-photographer-who-first-enabled-a-monkey-to-take-a-selfie. He could even have made all kinds of selfie-enabling contraptions for various members of the animal kingdom, thus esablishing a unique brand for himself (if making money was his goal).
Instead he jumped on the current everything-mu$t-be-owned band wagon and turned himself into an ownership monkey.

John says:

Re: wasted opportunity

He didn’t make a name for himself claimng he enabled an ani al to take a photo because this has been done for the last 100 years! It is a well established trick of wildlife photographers to get the animal to trigger the camera.

Once again, Techdirt followers no NOTHING about photography and copyright. Take a look at this if you can;t get your head around it.

http://fusion.net/story/261552/millions-of-animal-selfies-offer-snapshot-of-habitat/

Anonymous Coward says:

Re: Re: wasted opportunity

“Once again, Techdirt followers no NOTHING about photography and copyright.”

Once again, making unsubstantiated claims does not lend credence to your arguments.

All I need to find is one instance of a TD follower who “no” (s) something about photography and copyright. What that something is – is up to me – lol.

David says:

Well, PETA should be glad for this outcome

Imagine the judge would have decided that monkeys are enough of a legal persona to wield copyrights and that PETA is in charge of their finances.

Then everybody who has something stolen or destroyed by a monkey will be able to sue PETA for damages.

They can be very glad that the judge did not accept their arguments or they’d be broke in no time whatsoever.

Because, make no mistake, monkeys’ destructive potential quite outweighs their creative one. And they have a dim view towards their civic responsibilities.

John says:

Techdirt’s comments threads are proof positive that this site knows nothing about copyright because it is too hooked on destruction of individual property.

It claims copyright impedes creativity yet wishes to destroy individualism via the creation of art and social commentry. Working for nothing has NEVER worked outside of the lunatic asylum.

All Techdirt is concerned about is thieving the work of others under the presumption that artists will work for nothing.

There is secret history to the world that clearly uncovers the truth that ideas are paramount to cultural identity and advancement.

Techdirt wishes to stop the creativity at its source. It only talks about secondary creativity and ideas (which is the underbelly of social media, sharing).

Techdirt and its supporters promote parasitism.

It promotes falsely the notion that artwork should be made free, under some force of either law or communist pressure – err, community pressure.

Who will pay artists for their work? The State?

Seriously!

I have never belived in banning websites until now, but Techdirt should be amongst the first to banned because it promotes radical ideologies that created a Cold War.

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