In August 2014, we posted about a copyright ownership dispute involving selfie photographs. The disputed selfie photographs were taken by a monkey named Naruto in Indonesia in 2011. The photography equipment used to take these internationally famous “monkey selfies” belonged to famed wildlife photographer David Slater. At the time, Slater claimed copyright ownership because he owned the camera with which the “monkey selfies” were taken. In contrast, Wikimedia, having posted the photographs on Wikipedia, claimed the photographs were part of the public domain because U.S. copyright law recognized ownership of copyright in works produced only by human authorship.

In December 2014, the U.S. Copyright Office published a revised edition of the Compendium of U.S. Copyright Office Practices, a resource on institutional practices and related principles of U.S. copyright law. In it, it states “the Office will not register works produced by nature, animals, or plants… [or] a work purportedly created by divine or supernatural beings.” The Compendium includes specific examples of work not eligible for copyright protection. The first example: a photograph taken by a monkey.

In September 2015, the People for the Ethical Treatment of Animals, Inc. (“PETA”) filed a copyright infringement complaint in the U.S. District Court for the Northern District of California against Slater, on behalf of Naruto, asking the court to declare Naruto to be the author and copyright owner of the “monkey selfies” and to hold that all proceeds from the sale, licensing, and commercial use be used solely for the benefit of Naruto. PETA contended that since the photo(s) “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Slater,” Naruto was the author. PETA noted the author is typically “the person who sets up and snaps the shutter,” to which Slater’s attorneys responded that “setting up what became a world-famous, award-winning photograph is what professional nature photographer Defendant David Slater did.”

On January 28, 2016, following U.S District Judge William Orrick’s bench ruling earlier in the month, Judge Orrick issued a written Order granted defendants’ motion to dismiss. Citing to earlier precedent, the court noted that if Congress and the President intended to authorize animals to have standing to sue, they had the power to do so and, thus far, they had not done so. Accordingly, Judge Orrick held that under the current Copyright Act and consistent with the Compendium, animals cannot own a copyright and therefore Naruto is not an “author” within the meaning of the Copyright Act.

Whether U.S. law will ever be changed to allow copyright ownership by non-human “authors” of any type remains to be seen.

Written by: Susan Neuberger Weller

On January 6, 2015, Sen. Patrick Leahy introduced Senate bill 23 entitled the “Copyright and Marriage Equality Act.” The bill would amend Section 101 of title 17 of the United States Code by striking the current definitions of “widow” and “widower” and replacing them with the following:

“An individual is the ‘widow’ or ‘widower’ of an author if the courts of the State in which the individual and the author were married (or, if the individual and the author were not married in any State but were validly married in another jurisdiction, the courts of any State) would find that the individual and the author were validly married at the time of the author’s death, whether or not the spouse had later remarried.”

The purpose of the amendment is to address the transfer of a copyright to an author’s spouse or other next of kin following the author’s death. There were five original cosponsors of the bill.

On January 9, 2015, Rep. Derek Kilmer introduced in the House a corresponding bill, H.R. 238. That bill had 19 original cosponsors.

Both bills have been referred to their respective Committees on the Judiciary. We will keep you posted on the status of any action on each bill.

Written by: Joseph M. DiCioccio

Ownership of a copyright in one of the most popular songs in the English language has recently been challenged in several lawsuits around the country.  At the heart of the dispute is whether the music publisher Warner Chappell legitimately owns a copyright in, and thus has the right to license (and enforce) the rights to, the ubiquitous song “Happy Birthday to You.”  Since it acquired a company in 1998 that claimed to own the rights in this song, some have estimated that Warner makes as much as $2M per year licensing the rights to use this song in various movies and television shows.  Two recently filed lawsuits are challenging this ownership claim and seek a ruling that the rights to the song have passed into the public domain.


Written by Susan Neuberger Weller

Despite Hurricane Sandy, the US Supreme Court heard arguments on Monday, October 29, 2012 on whether the “first-sale doctrine” of US copyright law applies to goods made outside the US. The substance of the case, as we reported to you previously, is the specific language in the first-zero rule which applies to goods “lawfully made under this title,” referring to the caps US Copyright Act.

During oral arguments, several of the justices indicated that the statutory language could be interpreted several ways, leaving the possibility that policy considerations might motivate the final decision in the case.

 We will report back as soon as the Court’s decision issues, which is not expected for many months.

Written by Susan Neuberger Weller

In a number of recent cases, individual photographers have successfully sued third parties for unauthorized reproduction and use of photographs, particularly those from stock photography sources. Courts have found third party liability for willful and innocent copyright infringement for the use of individual photographs and have awarded damages to copyright holders based on such conduct. Generally, professional photographers offer their photographs for use by third parties through professional stock photography agencies that negotiate licenses for use of the photos on behalf of the photographer. Continue Reading Just Because You Can Copy It Does Not Mean That You May Copy It

Written by Susan Neuberger Weller

At a conference held June 18 at Stanford University Law School – The 9th Annual Stanford Ecommerce Best Practices Conference – it was reported that copyright holders are increasingly using the Digital Millennium Copyright Act’s (“DMCA”) notice and takedown procedures to address copyright infringement on websites. Continue Reading Copyright Owners Using DMCA To Take Down URLs

Pinterest, the latest social media craze, announced on Friday night in an email to users that it intended to make certain changes to its Terms Of Service.  The changes will not go into effect until April 6, 2012.  Pinterest has come under fire for allowing (or arguably encouraging) its users to infringe the copyrights of others by posting copyright protected content and/or images on their Pinterest boards without first obtaining permission from copyright owners to do so.  Indeed, Pinterest is all about allowing its users to generate Pinterest content by “shar[ing] beautiful things [users] find on the web.”  With over 10 million unique users and no signs that Pinterest is a passing phase, the copyright issues posed by Pinterest have come front and center.  So what was Pinterest to do? Continue Reading Pinterest Announces Changes To Its Terms Of Service

This Republican primary season has provided lots of fodder for political blogs, but it has also provided a few gems relating to — what else — trademark issues.    Now, U.S. copyright law is in the spotlight of the Republican primary campaign.  First, Republican presidential hopeful Mitt Romney is considering whether to pull a television ad that is comprised wholly of a 30 second clip from a January 21, 1997 episode of NBC’s “Nightly News” program hosted by Tom Brokaw.  The Romney ad is entitled “History Lesson” and can be viewed here.  In the ad,  Brokaw announces the House Ethics Committee’s decision to penalize then-Speaker Newt Gingrich.  The ad contains no other voiceover or images.  It ends simply with a Romney disclaimer (“Paid For By ….) and the statement that Romney approves the ad.  NBC has sent the Romney campaign a cease and desist letter, alleging that the ad constitutes copyright infringement.  Tom Brokaw has expressed that he is “extremely uncomfortable” with the use of his personal image.   Romney’s campaign asserts that its use of the news clip  “falls within fair use” and, therefore, does not violate copyright laws.

Second, Romney’s primary opponent in the race for the Republican nomination, Newt Gingrich, has copyright troubles of his own.  On Monday, Gingrich was sued in Illinois by a former member of the band Survivor (under the name “Rude Music”) for his use of the song “Eye of the Tiger” at campaign events.  The complaint asserts that Gingrich is “sophisticated and knowledgeable” of federal copyright law, citing Gingrich’s tenure in the U.S. House of Representatives during which the Copyright Act underwent several revisions.  As evidence of Gingrich’s further familiarity with copyright laws, Rude Music cites Gingrich’s recent criticism of the Stop Online Piracy Act at the Republican primary debate in South Carolina.  During that debate, Gingrich is quoted in the complaint as saying: “We have a patent office, we have copyright law. If a company finds that it has genuinely been infringed upon, it has the right to sue.”  In the complaint, Rude Music seeks an injunction and unspecified monetary damages based on Gingrich’s unauthorized public performances of the song.  Continue Reading Copyright Lessons from the Campaign Trail: Romney, Gingrich and Fair Use

In response to the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) pending in Congress, several online resources have decided to make their resources unavailable for a 24 hour period.  Wikipedia, Google, Mozilla, Reddit and others have either literally gone black today or have been converted into protest pages decrying censorship and urging consumers to contact their representatives to express opposition to the pending legislation.  The protest focuses around concerns that both SOPA and PIPA contain overly broad mechanisms for the enforcement of copyright and will have the effect of stifling free expression on the Internet.  The step of blacking out content on the Internet is unprecedented and surely deserving of attention.  To the extent that the general public was unaware of SOPA and PIPA before, the protest will unquestionably have the effect of raising awareness generally.  But will it have an effect on Congress?  We’ll see.

For more information about SOPA and PIPA, click here.