Photographer Impoverished by Copyright Lawsuit Filed on Behalf of Monkeys
Posted by Rebecca Blake on July 25, 2017
Two years ago, we reported on the copyright issues raised by the monkey selfie. While visiting Indonesia, UK wildlife photographer David Slater spent several days accustoming a group of crested black macaques to his presence, encouraging them to approach a camera he had preset to snap an in-focus photo. The resulting monkey selfies were an Internet hit, and Slater licensed the images through his agent, Caters News Agency. Slater quickly discovered that the images had been published in Wikimedia’s “free media repository.” Attempts by Slater to have the images removed were dismissed by Wikimedia, who took the position that since the images were not physically taken by Slater, he could not claim copyright ownership.
If the story ended there, Slater would have only experienced a loss in potential licensing revenue – in August 2014, Slater estimated to BBC News that he lost up to 10,000 £ (about $16,800 at that time) in income once the photos appeared on Wikimedia. Some of that income he may have been able to recoup through Wildlife Personalities, a book he self-published through Blurb. However, in 2015 PETA sued Slater on behalf of one of the macaques. The lawsuit claims that Slater and Blurb violated the monkey’s copyright when the selfie was included in his book, and proceeds from the selfies should benefit the monkeys. The Guardian reports that the mounting legal fees have bankrupted the photographer.
PETA’s lawsuit seems to be a stretch. In 2016, a court ruled against PETA on the grounds that an animal cannot be a copyright owner. (In the third edition of its Compendium, the Copyright Office flatly cites “a photograph taken by a monkey” as an example of a work the Office will not register.) PETA appealed that decision to the ninth circuit court, which is hearing the case this summer. As reported in the Guardian, the legal arguments heard in court approached the absurd; the judges questioned what financial benefits would apply to the monkeys, and how the copyright would be passed to their heirs.
The lawsuit has also raised concerns among some animal rights advocates. In 2015 when PETA first brought the lawsuit, the Daily Mail quoted Laurence Tribe, a Harvard law professor and supporter of animal rights, as saying “it trivializes the terrible problems of needless animal slaughter and avoidable animal exploitation worldwide for lawyers to focus so much energy and ingenuity on whether monkeys own the copyright in selfies taken under these contrived circumstances.” As a self-avowed animal advocate, PETA’s lawsuit was particularly galling to Slater. However, he takes comfort in the fact that the attention to the lawsuit has generated greater awareness of the plight of the macaques and their island habitat.
RIght: David Slater’s book, Wildlife Personalities, features one of the monkey selfies prominently.
Metro-NY Artists: Pro-Bono Legal Assistance for Copyright Disputes
Posted by Advocacy Liaison on June 27, 2017
The Copyright Alliance has partnered with Cravath, Swain, and Moore LLP and Columbia Law School to provide pro-bono trial services for individuals and small businesses involved in copyright disputes in New York City. Through the initiative, Columbia Law School students working under the supervision of lawyers from the firm provide legal counsel and learn trial skills as related to copyright law.
Designers and illustrators operating in New York City with a copyright dispute are encouraged to apply for consideration in the program. Applicants will be considered based on criteria published on the Alliance’s website. If you’re interested in applying for the program, visit the website to download the forms. For more information, contact the Alliance”s Copyright Counsel, Terrica Carrington, at firstname.lastname@example.org. (Please note that applying for the program does not guarantee legal assistance.)
“First Expressed in Nature”: Science Illustrator Pieter Folkens Raises Copyright Concerns
Posted by Rebecca Blake on May 24, 2017
Science illustrator Pieter Folkens came to our attention when we put out a call for a visual artist with experience in the entertainment industry. Not only is he a renowned marine mammal artist, Folkens has also created animatronics models used in films such as “Free Willy” and “Star Trek VI: The Voyage Home”. In April, Folkens represented visual artists with the Copyright Alliance at "Beyond the Red Carpet,” an event which showcased the creatives working behind the scenes in the film industry. The Alliance interviewed Folkens for their "Five Questions” interview series with individual creators.
“Five Questions with Science Illustrator Pieter Folkens” covers his early fascination with marine mammals, triggered by the discovery of fossilized shark teeth during a third-grade field trip, and shortly thereafter, excavating a 13.5 million year old sperm whale skull. That experience eventually led to a satisfying career documenting whales, dolphins, porpoises, and other marine life in scientific illustration and sculpture. As Folkens put it, “The creative process is an exercise in discovery. The enjoyment comes in two forms—initially learning new things followed by sharing them with others.”
However, it's the Alliance's probing of Folkens' experience with copyright infringment which is particularly illuminating. Folkens was one of the first science illustrators to focus on marine mammals, and his high-quality illustration has often been copied – his work has been infringed up to a dozen times a year (that he knows of). His method of dealing with the infringement is to send a passive notification, followed by an invoice for the use, and an attorney's letter. This sequence of steps permits Folkens to gauge the infringer's response and anticipate what steps he'll need to take. He strongly advises creators to “learn copyright law,’ recommending that they stay abreast of recent case law.
It's clear he's followed his own advice in his response to the final question, on what he would change about copyright law. Folkens cites concerns with the merger doctrine and scenes à faire doctrine, two principles most visual artists are unaware of. (Put very simplistically, the merger doctrine states that when an idea and the expression of that idea are so closely tied together that they’re inseparable, then the expression can’t be copyrighted since ideas are not copyrightable. The scenes à faire doctrine states that elements of a creative work may not be copyrightable if the genre of the work dictates them – think of folklore, stock story lines, etc.) Folkens’ concern is that these doctrines are unfairly applied to works of visual arts, citing a comprehensive law review article by attorney Michael D. Murray.
In response to our query, Folkens went into greater detail:
“The issue is developing wrongly in the courts under the notion of “first expressed in nature” that says any depiction of an animal is not protectable because whatever an animal looks like or does was “first expressed in nature” and therefore not a copyrightable idea. (Taken to its extreme, Ansel Adams’ “Moon Over Half Dome” would not be a copyrightable subject because Half Dome is a rock that was first expressed in nature, and same goes for the moon.) It sounds absurd, but it has been a successful defense in several cases in the Ninth Circuit, even when the copying of the original was proven by the plaintiffs. The problem arises from the two step "reductive analysis” employed by the court that essentially removes all elements of expression in the first step (copyrightablity of the subject), keeping the second step (copying of protected elements) out of consideration and away from the trier of fact. I'm taking up that battle in the Ninth Circuit this fall.”
Urban Outfitters Loses Appeal of Copyright Infringement Case, to the Tune of $530,000
Posted by Rebecca Blake on April 07, 2017
Urban Outfitters lost its appeal of a district court jury decision that found the company guilty of willful infringement, and has been ordered to pay $530,000. A small Los Angeles fabric supplier to the apparel industry, Unicolors, successfully sued Urban Outfitters for copyright infringement in district court. Urban Outfitters appealed the decision, and on April 4, the Ninth Circuit Court upheld the district court’s ruling. The court ruled that Urban Outfitters had willfully infringed of one of Unicolors’ copyrighted fabric designs. The court published the ruling, a step the Kali Hays described in WWD as unusual and indicative of the court’s intention that lower courts look to the ruling for guidance in similar cases.
At issue is a palm frond design which was originally created by Milk Print, LLC. Unicolors bought the intellectual property rights to the pattern, which they then modified slightly for printing on bolts of cloth by changing the size and color palette. The final design was registered with the Copyright Office. (Unicolors is aggressive in protecting its copyrights, having registered thousands of patterns and designs.) In 2010, Urban Outfitters developed a dress which used a textile with a that textile design. Unicolors noticed, and sent the company a cease-and-desist letter, followed by the lawsuit.
During the original trial, Unicolors provided evidence showing that Urban Outfitters maintains a library of thousands of fabric swatches, collected from vintage goods and some purchased from design studios, including Milk Print. The samples are used by Urban’s designers for “inspiration” upon creating new fashions. Unicolors argued that Urban’s failure to check on the copyright status of the swatches used by its designers showed that the company acted with “with reckless disregard for the possibility that the fabric it sampled was protected by copyright, and such conduct is sufficient evidence of willful infringement…”.
For its part, Urban argued that they had no knowledge that they were infringing, and that it’s unreasonable to expect the company to “exhaustively investigate whether any particular fabric design is protected by a copyright registration.” The court dismissed this argument: “Regardless of how difficult it may be to determine whether particular designs have been registered with the Copyright Office, a party may act recklessly by refusing, as a matter of policy, to even investigate or attempt to determine whether particular designs are subject to copyright protections.”
Intellectual property law firm Knobbe Martens covered the case in an article on their legal blog. They caution companies using existing designs: “The best practice would be to use only those works where either the author is known and permission has been received or it is clear that the work is not protected by copyright.”
The court decision can be downloaded from the Fashion Law Institute website.
Photo: public domain.
The Guild Applauds the Introduction of the “Register of Copyrights Selection and Accountability Act”
Posted by Advocacy Liaison on March 27, 2017
The Graphic Artists Guild applauds the introduction of H.R. 1695, the “Register of Copyright Selection and Accountability Act of 2017,” on March 23. The legislation requires the Register of Copyrights to be appointed by the President of the United States and confirmed by the United States Senate, and limits the position to a 10-year term. The bill is the outcome of bicameral discussions between House Judiciary Committee Chair Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI) with Senate Judiciary Committee Chairman Chuck Grassley (R-IA), Ranking Member Dianne Feinstein (D-CA), and Member Patrick Leahy (D-VT). It has broad bipartisan support, as evinced by the 29 co-sponsors.
Under current copyright law, the Register is appointed by the Librarian of Congress. The sudden removal of the previous Register of Copyrights, Maria Pallante, last October cast a spotlight on the need for greater autonomy of the Copyright Office. Along with a coalition of visual artist associations, the Guild has advocated for that, including making the Register of Copyrights a Presidential appointee. We urge Congress to swiftly pass the bill. Currently, the Librarian is conducting a search for a new Register of Copyrights. We respectfully ask that she suspend the search while Congress considers H.R. 1695.
Why we support making the Register of Copyrights a Presidential appointment, with advice and consent of the Senate (PAS):
• Copyright is increasingly critical to the US economy, and core copyright industries contribute over $1.2 trillion to the US GDP, and employing over 5.5 million workers.
• The US Copyright Office is in dire need of modernization; some current practices date back to the late 1800s! Making the Register of Copyrights a PAS reflects the importance of the office to US economy, jobs, and creativity, and is the first step to modernizing the office.
• Making the Register a PAS ensures the independence of the Copyright Office, and that the Register is an expert in copyright. Currently, the Librarian of Congress is not bound by any standard in the selection of the Register.
• The Copyright Office resides within the Library of Congress by historical accident from the 19th century, but both offices have different missions and priorities. In fact, the Library of Congress is a stakeholder when it comes to copyright policy, creating a potential conflict of interest.Next Page
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