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Copyright Law

On Gods and Macaques: Who Owns the Monkey Selfie?

Posted by Rebecca Blake on August 20, 2014

crested black macaque © David SlaterIf an Indonesian monkey in the middle of the forest on a remote island takes a selfie with an English photographer’s camera, who owns the copyright? While this sounds like a pseudo case history dreamt up by a creative law professor to present during a lecture on intellectual property, the story, and the rights issue raised, are very real. British wildlife photographer David Slater spent a number of days stalking a group of crested black macaque monkeys. As the animals became accustomed to him and his equipment, they approached the camera, setting it off. The resulting self portraits, showing the monkeys grimacing at their reflections in the large camera lens, are hysterical.

The photos were an Internet sensation when they appeared on a number of news websites such as the Daily Mail in 2011. (Slater licensed the images through his agent, Caters News Agency.) Recently, the images hit the news again when several of the images, marked as public domain, were published by a Wikimedia user in their “free media repository,” Wikimedia Commons. Slater requested that Wikimedia remove the photos, and the organization refused to do so, stating that the photographer cannot claim to own the copyright since he didn’t actually snap the photo.

So who does own the copyright? Attorney Leslie Burns addressed the issue in her blog post, “On the Monkey Selfie.” In her article, she cited Wikimedia Foundation’s  Chief Communications Officer Katharine Maher, who is quoted in the Washington Post as saying, “What we found is that U.S. copyright law says that works that originate from a non-human source can’t claim copyright.” Burns disputes the basic premise presented by Maher, stating that since the photograph was taken in Indonesia, on a camera that belongs to a UK citizen, US copyright law hardly applies.

Guild Advocacy Liaison Lisa Shaftel expressed a similar view on the Copyright Clearance Center’s, “On Copyright ,” SoundCloud channel. In her opinion, US Copyright law is not relevant to the claim. Shaftel makes no conclusions as to who owns the copyright. However, she dismisses Wikimedia’s claim that the photograph is public domain, stating that the organization is making unauthorized use of the photo.

Burns dug up a case history that could have some bearing. In a second blog post, “More Monkey Business,” she cites the case of Urantia Foundation v. Maaherra. The case hinged on some text that was purported to have been authored by celestial beings. The court looked closely at whether the work was copyrightable, since authors were non-human. The court decision stated “…so as long as a human (or humans) did something to contribute to making this work, then the copyright did exist and vested in those humans.” Burns proposes that were Slater a US photographer, whatever work he did to the images – converting the RAW files, culling the photos, cropping or tweaking the color balance – would confer upon him copyright ownership since the photos were actually snapped by a non-human.

Of course Slater is not a citizen of the United States, and US copyright law is not applicable here. However, the conditions under which the photos were taken may be very relevant to the outcome of the case. Despite earlier stories which reported that the photos were taken without his intervention, Slater’s back story claims that he set up the conditions which enable the monkey-selfie: encouraging the macaques to come closer, adjusting the settings (auto-focus, shutter speed, etc.) to be optimal, placing the camera on a tripod the monkeys would approach, and even steadying the tripod with one hand.

While some may question Slater’s story, what isn’t up for debate is the impact having the photos available on the Wikimedia site is having on Slater’s bottom line. As Petapixel reports, “Whether or not the letter of the law agrees with Slater’s claim is up for debate, but one thing is certain: he’s missed out on a lot of potential licensing fees thanks in large part to the photo being uploaded to the Commons.”

Photo © David Slater. Used with permission.

Guild joins Amicus Brief in Support of Comic Creators & Artist

Posted by Rebecca Blake on August 11, 2014

Seal of the Supreme CourtOn July 22, the Graphic Artists Guild joined the National Writers Union (NWU), the  Science Fiction Fantasy Writers of America (SFWA), and the Society of Children’s Book Writers and Illustrators (SCBWI) in signing on to an amicus brief on behalf of the heirs of the creators of  “Superman,” Siegel and Shuster, and Jack Kirby, an early Marvel Comics artist. The brief supports the rights of both families to sue DC Comics and its parent company, Warner Brothers, and Marvel, respectively, to recover the original copyrights to the work of Siegel and Shuster, and of Kirby. The families of Siegel and Shuster, and of Kirby, are seeking to have the US Supreme Court hear their appeals of two Circuit Court decisions which rejected their attempts to regain the copyrights.  
 
Siegel and Shuster, the co-creators of the Superman series, originally signed away their rights to the character in 1938. Their heirs unsuccessfully sought to terminate DC Comic's copyrights to the work by issuing statutory notices of termination in 1997 and 2002. In 2013, the Ninth Circuit Court stripped Shuster's heirs of termination rights, a ruling that according to NWU ignores the Supreme Court's opinion in the landmark case NY Times v Tasini (2001), which ruled that termination rights are inalienable. Kirby's heirs sought to terminate Marvel’s copyrights to his artwork, a move which Marvel countered in 2010 by suing the Kirby family for declaratory relief that Kirby's work fell under the work for hire exception to the Copyright Act. The judge hearing the case ruled in favor of Marvel, and the ruling was affirmed by the 2nd Circuit Court of Appeals in 2013.
 
While the Supreme Court has not yet stated that the petition will be reviewed, indications are good. Marvel initially refused to respond to the petition, but was asked by the justices on May 14 to file a response. The petition has been distributed to the justices for conference on September 29. A ruling by the Supreme Court in favor of the heirs to Siegel, Shuster, and Kirby would have wide implications on the interpretation of the copyrights of independent contractors and creators.

 

For clarification on “all rights,” “termination of rights,” and “work for hire,” visit our Contract Glossary.

Guild Member Ed Shems Testifies on Copyrights and First Sale

Posted by Rebecca Blake on June 17, 2014

Guild member Ed Shems represented the Graphic Artists Guild, the Copyright Alliance, and concerns of individual artists at a hearing in front of House Judiciary Committee members on June 2. Shems spoke on the impact proposed changes to copyright law regarding the first sale doctrine could have on artists. The proposed changes would expand the doctrine of first sale, permitting licensed digital materials to be resold by the purchaser.

In the past, the doctrine of first sale has had little relevance to artists, who have been able to control the copyrights to their work through licensing agreements. The doctrine permitted the reselling of tangible materials, such as books or CDs, but had no impact on licensed creations. The proposed changes to the first sale doctrine would permit digital materials to be resold as if they were tangible goods. As Shems testified, "There is no such thing as a ‘used book’ in the digital world.... every digital book sold under the first sale doctrine would compete directly with my client's sales – this means my clients will have fewer sales, and fewer resources to devote to illustrate or design their works. As a result I would have fewer clients and we might see a decline in the industry in which I make my living."

Additionally, Shems noted that the proposed changes would make it difficult to police infringement of his artwork: "As a creative professional and small business owner, I am able to choose which clients I will work with. Under an extension of the first sale doctrine, where copies of my work could be digitally sold to others I don't know or work with, that right would be taken away from me." Finally, Shems pointed out that the expansion of the first sale doctrine to cover licensed-based transactions would force creators to raise their fees to cover all rights to their work, rather than negotiate limited rights tailored for each client's needs and budget, and would create a de facto work-for-hire arrangement.

Shems’ full remarks to House Judiciary members can be read here. Shems will also take part in the US Patent and Trademark Office (USPTO) roundtable on First Sale Doctrine on June 25 at Harvard University in Boston. The USPTO has scheduled a series of roundtables and discussions on copyright and intellectual property issues throughout the summer. The full schedule of talks has been posted on our website. The general public can attend the events in person or via webcast.

Below: Ed Shems, Guild Advocacy Chair Lisa Shaftel, and Sandra Aistars from the Copyright Alliance after testifying. Used with permission.

Ed Shems, Guild Advocacy Chair Lisa Shaftel, and Sandra Aistars from the Copyright Alliance.

Copyright Forums and Roundtables

Posted by Rebecca Blake on April 24, 2014

US Department of Commerce logoThe Copyright Alliance notified us that the Internet Policy Task Force (IPTF), a working group within the U.S. Department of Commerce, has scheduled a number of roundtables on copyright issues. In following up on their Green Paper on copyright issues in the digital economy, the IPTF is soliciting input from artists and creators on their concerns.

On May 8, the IPTF is holding a second public meeting in Berkely, California, on online piracy. This meeting will specifically solicit feedback on problems creators face in handling online piracy as a result of the lack of standardization in the DMCA (Digital Millenium Copyright Act) takedown process. The IPTF will be publicizing the agenda and webcast information for the meeting in early May.

Roundtables on a variety of copyright issues, including remixes, statutory damages, and first sale doctrine have been scheduled:
May 21: Vanderbilt University Law School, Nashville, TN
June 25: Harvard University Law School, Cambridge, MA
July 29: Los Angeles, CA (location to be determined)
July 30: Bancroft Hotel, Berkeley, CA

More information on the roundtables is available on the Department of Commerce's website. Interested participants can register online for in-person or webcast attendance.

Skip the Rage: Jessica Hische on Dealing with Ripoffs

Posted by Rebecca Blake on April 17, 2014

Jessica Hische logoLettering and illustration rockstar Jessica Hische is also the author of warm, witty treatises on working and thriving as a creator. Her most recent article deals with the thorny issue of ripoffs. A designer wrote about discovering imitators – some working for large campaigns for major companies – and asked Hische “…how you personally deal. Frankly, I'm flattered and simultaneously depressed at any given moment and try not to think about it.”

Hische’s counsel is her typical blend of humor and practical advice. In describing the typical sequence of outraged reaction followed by regret and a more formal communication with the infringer, she recommends skipping the rage. She also distinguishes between an individual who is copying an artists’ style versus a designer or agency actually reusing work without permission. In the former case, Hische points out that the imitator may be inexperienced, and she advises educating them about the inadvisability of copying someone else’s style.

In the case of a work being outright infringed, Hische recommends sending a stern letter to the artist or agency that produced the infringing work. However, she cautions that taking on a large company can be expensive and time consuming, citing Modern Dog’s recent successful case against Target, Disney and Jaya Apparel Group. She sums up by stating that her best advice is to register the copyright on your creations: “While you of course ‘own the copyright’ to the images you create unless you're transferring them to the client in a contract, it’s difficult to pursue copyright infringement cases without having filed for copyright of the images officially.”

Note: While original images are automatically copyrighted to their creators, registering the copyrights confers a extra degree of legal clout: it creates a public record of authorship, it’s required before an infringer can be taken to court, and it enables the creator to sue for damages and be awarded legal fees. For more information on copyrights, visit our article in our Resources page.

The issue of fan-copying is a topic Hische addressed in a much earlier article, “Inspiration vs. Imitation.” The article was directed towards aspiring artists  and fans who openly plagiarized Hiche’s work. In this article she makes a clear distinction between copying as a learning tool, versus passing off work which closely replicates another’s as original work. She advises new artists on how to move past simply imitating their role models: draw from many inspirations rather than a chosen few; dig into historical references; train your eye to spot differences and originality; and be aware that passing derivative work as original will  ruin your reputation amongst your peers and potential employers.

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