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Can a monkey own copyright? The US court of appeal decides.

Chris JHolland27 April 2018

The IPKAT website (and various newspapers) have reported the latest (and final?) stage of the legal disputes surrounding the “Monkey selfie” case. In 2014 the photographer, David Slater started an action against Wikimedia for copyright infringement following online usage without permission of the photograph of a crested macaque. The macaque had “operated” the camera set-up by Mr Slater and taken an impressive selfie. Mr Slater claimed ownership of copyright in the photograph (he had painstakingly set up his camera in a manner which made the selfie possible).  Wikimedia successfully disputed whether a photograph taken by a monkey could be protected by copyright in the first place.

Subsequently PETA, an animal rights organisation, started a separate action claiming to represent as (“next friend” in US legal terms) the interests of the monkey in question, identified as “Naruto”. PETA (on behalf of Naruto) challenged the right of the wildlife photographer to exploit the celebrated monkey selfie, given that Naruto and not Mr Slater took the photograph and was therefore the rightful owner of the copyright. The district court having dismissed the claim, PETA launched an appeal, but David Slater and PETA settled out of court in 2017. Nevertheless the appeal process went ahead and the Opinion in Naruto v. Slater has been issued by the Court of Appeals for the 9th circuit. Read also the full report from the IPKAT website.

The claim by PETA was dismissed:  “Nonetheless, we conclude that this monkey – and all animals, since they are not humans – lacks statutory standing under the Copyright Act”  Opinion of the court, page 4 (Circuit Judge Bea). The court side-stepped, perhaps wisely any practical issues about the precise identity of “Naruto” as distinct from any other crested macaque of similar appearance in the same location. Would the monkey-selfie pass the originality test under EU copyright law to qualify for copyright protection? Answers on a postcard…

Star Trek but not as we know it

Chris JHolland16 December 2016

Fans of the well known TV series may be interested to read up on a current copyright case before the Central District of California Court. Follow the link to the 1709 Blog for a full account of the case:  Paramount v. Axanar The Ars Technica Blog also covers the case here. The defendents are producing a short film which is a prequel to the Star Trek series. The work in question is intended as a mockumentary by the producers who are firm Star Trek fans. It is not they say designed to compete with anything produced by the rights owners of the original series. Axanor are also working on a longer film in a similar vein.

The plaintiffs on the other hand claim that the mockumentary infringes their copyright as an unauthorised derivative work and cannot be regarded as sufficiently “transformative” to be covered by the US doctrine of “fair use” (although the latter is much wider in scope than the more familar UK concept of “fair dealing”).  Neither can it be justified as a parody in their view.

Possible topics to be discussed include: What constitutes fan art,  how far fictional characters are protected by copyright and whether having “pointy ears” might be a protected characteristic.

US internet service provider loses court case

Chris JHolland22 August 2016

US copyright legislation in the form of the Digital Millenium Copyright Act (DMCA) offers a degree of protection against legal liability if their services are misused by customers for illegal file sharing or other activities which infringe copyright.  However the 1709 Copyright blog reports a recent case in which an internet service provider (ISP), Cox Communications lost an appeal against an award of US$ 25 million to a music rights management company, BMG. In this case the ISP had failed to do enough to try to stop the online infringement in music and films. The eastern Virginia District Court found that in the circumstances Cox Communications could not claim the “safe harbor” protection afforded to ISPs in the US legislation. This is an interesting example of the large sums which can be involved in cases of copyright infringement on a commercial scale.