Copyright

Forgive me for going all "tabloid" with the headline, but it's time to dismantle some of the persistent myths that surround the passage of the Sonny Bono Copyright Term Extension Act (the SBCTEA). I received an email a few weeks ago from a reader who was obviously aggrieved by something I had written either about Mickey Mouse[ref]Mickey's Headed to the Public Domain! But Will He Go Quietly?[/ref] or copyright duration,[ref]Copyrights Last Too Long! (Say the Pirates): They Don't; And Why It's Not Changing Anytime Soon[/ref] or perhaps both. The email stated that I had failed to mention the "real reason" for the passage of the SBCTEA was that Sonny Bono had been paid off by "lobbyists" for the Walt Disney Company, inducing Mr. Bono to rewrite the copyright law in their favor, and that I should "follow the money."[ref]I attempted to respond by email to my critic, but my email was bounced back to me by the host.[/ref] I immediately knew that this was not the case, as Sonny Bono died quite a while before passage of the SBCTEA, thus greatly impairing his ability to persuade his fellow Congressmen. But since the "Disney payoff" is a story that has long been presented as pure fact frequently on the internet,[ref]How Mickey Mouse Keeps Changing Copyright Law[/ref] I decided that perhaps a little more deep research should be done. And the "shocking truth" revealed by my research is that very little of what happened was actually shocking. The first draft of the copyright extension bill was H.R. 604, introduced into the House of Representatives on February 5, 1997.[ref]Opposing Copyright Extension - H.R. 604[/ref] The bill's sponsor was Representative Elton Gallegly,[ref]Id.[/ref] a Republican from California.[ref]Elton Gallegly[/ref] The bill had nine co-sponsors,[ref]Opposing Copyright Extension - H.R. 604[/ref] none of whom was Sonny Bono, even though he was a member of the House of Representative at the time.[ref]Sonny Bono[/ref] A companion bill, S. 505, was introduced to the Senate on March 20, 1997 by Orrin Hatch, with five co-sponsors.[ref]Opposing Copyright Extension - S. 505[/ref] So, I think we can dispense with the notion that Sonny Bono was the author and motivating force behind the copyright extension act. The House version of the bill did not pass, and was reintroduced in the next session as H.R. 2589 by Representative Howard Coble on October 1, 1997.[ref]Bill Summary & Status - H.R. 2589 All Congressional Actions[/ref] The bill had 12 co-sponsors, including previous sponsor Elton Gallegly and, for the first time, Sonny Bono.[ref]Bill Summary & Status - H.R. 2589 Cosponsors[/ref] He would be dead a little more than three months later, on January 5, 1998, after skiing into a tree in Nevada.[ref]Sonny Bono[/ref] As the legislative history shows, H.R. 2589 was not even considered by the House Committee on the Judiciary until March 3, 1998,[ref]Bill Summary & Status - H.R. 2589 All Congressional Actions with Amendments[/ref] almost two months after Sonny Bono died. On March 25, 1998, the sponsor, Howard Coble moved to rename the bill the "Sonny Bono Copyright Term Extension Act."[ref]Id.[/ref] That same day, it was passed out of the House by voice vote and sent to the Senate.[ref]Id.[/ref] Now, that Bono supported the measure is without question. Those too young to recall will not know that Sonny Bono was half of the popular singing duo "Sonny and Cher" and had composed quite a few hit songs himself.[ref]Sonny Bono[/ref] "Bono wrote, arranged, and produced a number of hit records with singles like "I Got You Babe" and "The Beat Goes On"…Bono co-wrote the song "She Said Yeah", which was covered by The Rolling Stones on their 1965 LP December's Children."[ref]Id.[/ref] So, far from being corrupted by the influx of "Disney dollars" into his re-election campaign, Bono would have supported the measure anyway, as it was clearly in his best self-interest to do so. The first surprising, if not "shocking," factor is how little opposition there was to the SBCTEA within the halls of Congress. It passed out of the House on a "voice vote," meaning the support for the measure was so overwhelming that a "roll call" vote was unnecessary. A similar situation occurred in the Senate. On October 7, 1998, it passed the Senate by "unanimous consent,"[ref]Copyright Term Extension Act[/ref] meaning not one Senator voiced an objection to the bill. Back in the House, the final version of the bill again passed by voice vote that same day,[ref]Id.[/ref] and was signed into law by President Clinton on October 27, 1998.[ref]Id.[/ref] But, what of the pernicious influence of the Walt Disney Company? Certainly there is no question that Disney lobbied strongly in favor of the bill. It was obviously in their best interests to do so. But what about the money? Follow the money! Disney did contribute to the re-election campaign of various members of the House. "Of the 13 initial sponsors of the House bill, 10 received contributions from Disney's political action committee."[ref]Opposing Copyright Extension - Commentary on Copyright Extension[/ref] Aha! Graft! Greed! Corruption! Until you look at the piddling amounts that were actually paid. The largest amount that was given by the Disney PAC to any one Representative was the sum of $5,000.00.[ref]Id.[/ref] This amount was given to Representative Cole, who sponsored the bill and Howard Berman, a co-sponsor of the bill and a senior member of the House Judiciary Committee.[ref]Id.[/ref] Everyone else got less. On the Senate side, Orrin Hatch, the bill sponsor, got $6,000.00.[ref]Id.[/ref] Disney also contributed lesser amounts to eight out of the twelve co-sponsors of the Senate Bill.[ref]Id.[/ref] Senate Majority Leader Trent Lott got $1,000.00.[ref]Id.[/ref] I would like to think that if the vote, power and influence of the Senate Majority Leader is truly "up for sale," that it would very likely cost more than $1,000.00. And, remember, not every Member of Congress got money from Disney. Yet, the bill passed by voice vote in the House and unanimous consent in the Senate. They must have thought that there were sound policy reasons for doing so. In researching this post, I encountered one article that claimed that "the Disney Group" had paid millions of dollars in money to secure the passage of the SBCTEA. Yet, by clicking on the hot link, I discovered that the "Disney Group" touted by the author consisted of every single member of the Film, TV, Radio, Broadcasting and Music industries and every single dollar that all of them gave to all of Congress. Yes, that total would be in the millions of dollars. But it would be an unrealistic stretch to say that all of that money was because of the SBCTEA, especially where some of the groups included in the "Disney Group" are generally antagonistic towards each other, e.g. the Broadcasters and the Music industry. So what's truly going on here? Let's look at copyright terms historically, and take Mickey out of the equation. The first copyright statute gave a length of protection of only 14 years.[ref]Id.[/ref] In 1790, copyright duration was doubled to 14 years, renewable for another 14 years, for 28 years total.[ref]How Mickey Mouse Keeps Changing Copyright Law[/ref] In 1831, copyright duration was increased by another 50%,[ref]Id.[/ref] to 28 years plus 14 years renewal. In 1909, copyright duration was increased by another 50% to 28 years plus another 28 years for renewal.[ref]Id.[/ref] In 1909, Walt Disney was 8 years old.[ref]Walt Disney[/ref] He had nothing to do with the term of copyright quadrupling from 14 years to 56 years. Obviously, the members of Congress found sound reasons to do so. Then, in 1976, the jump is made from a fixed term of 56 years to life of the author plus 50 years. As recounted previously on this blog, this change was necessary for the United States to become members of the Berne Treaty, which in 1971 had mandated all members to adhere to a minimum term of life plus 50.[ref]Copyrights Last Too Long! (Say the Pirates): They Don't; And Why It's Not Changing Anytime Soon[/ref] But isn't that a tremendously long time? It depends on when you die, in relation to the creation of the work in question. Even when the term is life plus 70 years. Let's take the sad case of Kurt Cobain. At the time of his death, Nirvana had released two major label records, Nevermind in 1991 and In Utero in 1993.[ref]Nirvana (band)[/ref] He died in 1994.[ref]Kurt Cobain[/ref] The songs he wrote for In Utero will receive just 71 years of protection, only 15 more years than under the 1909 act. The posthumous songs released by Nirvana will not even see that length of time. It is fashionable to theorize that having gotten copyrights extended 20 years, that the next time Mickey Mouse is about to go into the public domain, that there will be a renewed effort to extend copyright lengths in the United States.[ref]How Mickey Mouse Keeps Changing Copyright Law[/ref] However, as previously pointed out on this blog, Mickey will go into the public domain in less than ten years from now and there has not been one solid proposal to extend copyrights once again.[ref]Mickey's Headed to the Public Domain! But Will He Go Quietly?[/ref] And the chance was surely there. Consider the Trans-Pacific Partnership (TPP), a trade agreement recently reached between the United States, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.[ref]Overview of the Trans Pacific Partnership[/ref] Part of the agreement was copyright term harmonization amongst the treaty members. Some, like Canada and New Zealand, had life plus 50 terms, the United States had life plus 70 and Mexico had life plus 100.[ref]List of countries' copyright lengths[/ref] Since the treaty was negotiated in secret,[ref]Trans-Pacific Partnership Agreement[/ref] it would have been the perfect opportunity to further jack up copyright duration in the United States, should the desire be there. But it apparently did not happen. I say "apparently" because what is currently accessible is a leaked version of the document from WikiLeaks,[ref]TPP Treaty: Intellectual Property Rights Chapter, Consolidated Text (October 5, 2015)[/ref] which may or may not be the true final agreement, so caveat emptor. In Article Q.Q.G.6 of the TPP, copyright terms are harmonized at life of the author plus 70 if created by natural persons, and 70 years from first publication if created by a corporation or business (down from a previously leaked proposal of 120 years for corporate works[ref]The Final Leaked TPP Text Is All That We Feared[/ref]). So, New Zealand and Canada will have to come up to life plus 70. However, because the treaty notes that the Berne "rule of the shorter term,"[ref]Berne Treaty Article 7.8[/ref] which allows members not to enforce copyright term in excess of life plus 70, is still in effect, the U.S. (or any other treaty country) will not recognize Mexico's life plus 100 regime. In addition, Article Q.Q.G.8 of the TPP enforces Article 18 of Berne Treaty in which works which have previously fallen into the public domain are not revived. So, in the end, as journalists say, the deeper you dig into a story, the less interesting it becomes. Nothing here is particularly "shocking" or "outrageous," especially where the United States, given an open opportunity to slip the TPP partners "a Mickey," failed to do so.

In the past month, three more decisions have been handed down on the question of whether a particular use was "transformative" in the context of a fair use defense. These decisions once again highlight that the case law surrounding "transformative use" is a complete mess, and needs to be cleaned up by the Supreme Court absolutely as soon as possible. The cases are Author's Guild v. Google, Inc.,[ref]2015 WL 6079426 Second Circuit Court of Appeals 2015[/ref] Katz v. Google,[ref]2015 WL 5449883 Eleventh Circuit Court of Appeals 2015[/ref] and Galvin v. Illinois Republican Party.[ref]2015 WL 5304625 District Court for the Northern District of Illinois 2015[/ref] In Author's Guild v. Google, Inc., at issue was a project where Google "made digital copies of books submitted by major libraries, and allowed the public to search the texts of the digitally copied books and see displays of snippets of text."[ref]2015 WL 6079426 at 1[/ref] The Second Circuit's resulting finding of fair use is not what is notable about this decision. As Terry Hart points out in his blog Copyhype,[ref]What Did Google Books Decision Do To Cariou v Prince?[/ref] what is notable is that this Court appears to contradict the holding of another panel from the Second Circuit in the case of Cariou v. Prince,[ref]714 F.3d 694, 706-07 (2nd Cir. 2013)[/ref] which was discussed in a previous blog post.[ref]Marching Bravely Into the Quagmire: The Complete Mess that the "Transformative" Test Has Made of Fair Use[/ref] The Second Circuit harkens back to a passage frequently overlooked by other Courts in applying the principles of the Acuff-Rose case that started this entire "transformative use" problem.[ref]510 U.S. 569 Supreme Court of the United States 1993[/ref] The passage cited by the Second Circuit reads thusly: "If…the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish)[ref]Id. at 580[/ref]… Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing."[ref]Id. at 581[/ref] Then the Second Circuit opinion adds this: "[T]he would-be fair user of another's work must have justification for the taking. A secondary author is not necessarily at liberty to make wholesale takings of the original author's expression merely because of how well the original author's expression would convey the secondary author's different message. Among the best recognized justifications for copying from another's work is to provide comment on it or criticism of it. A taking from another author's work for the purpose of making points that have no bearing on the original may well be fair use, but the taker would need to show a justification.[ref]Authors Guild at 7 (emphasis added)[/ref] As Mr. Hart correctly observes: "This would appear to contradict Cariou—there, Prince did not have any justification for using Cariou's photos; indeed, he did not articulate any reason at all for using them, but the court nevertheless held that to be a fair use. I say appear to contradict since a panel court cannot overrule prior holdings by the same court, so we are left with a state of tension between the holdings in Cariou and Authors Guild."[ref]What Did Google Books Decision Do To Cariou v Prince?[/ref] If two panels from the same Circuit cannot agree on what the proper showing needs to be in order to establish a fair use defense on the basis of "transformative use," then we have a big problem that is only going to get worse over time. Meanwhile, down at the Eleventh Circuit, we have a ruling that a bare reproduction of a photograph, placed in an article critical of the photo's subject, is "transformative."[ref]Katz v. Google 2015 WL 5449883 Eleventh Circuit Court of Appeals 2015[/ref] At issue was an unflattering photograph of the Plaintiff, Raanan Katz, which the Defendant used to illustrate a series of blog posts that were critical of Katz's business practices.[ref]Id. at 1[/ref] Katz purchased the copyright to the photograph, then sued the blogger for copyright infringement.[ref]Id.[/ref] The Court reaches out to other Circuits for the proposition that "'Courts often find such uses [of faithfully reproduced works] transformative by emphasizing the altered purpose or context of the work, as evidenced by the surrounding commentary or criticism.' (citation omitted) ‘The use of a copyrighted work need not alter or augment the work to be transformative in nature.' (citation omitted)." Some of the uses of the photo were altered. Some were not.[ref]Id. at 2[/ref] But the Court errs in trying to twist the use of the unaltered photo to be "transformative" by repurposing it with "new expression, meaning or message."[ref]Id. at 3[/ref] Plaintiff Katz considers the photo to be "unflattering and embarrassing."[ref]Id. at 1[/ref] The photo was then used to illustrate a blog that was critical of his business practices, which he probably would also consider "unflattering and embarrassing." I do not see how the photo has been repurposed at all. Unflattering photo illustrates unflattering blog post. What's worse is the Court did not have to go there to affirm a finding of fair use. The "purpose and character of the use" was to illustrate a series of blog posts critical of Katz, for which the defendant gained no revenue.[ref]Id. at 2[/ref] The "nature of the work used" was a factual work, which correctly depicted Katz, for which there is no commercial market.[ref]Id.[/ref] While at times all of the work was used, this was justified by using less than the entire photograph would impair the message sought to be conveyed.[ref]Id. at 4[/ref] And the major point that the Court should have addressed first is that there is no market for the work.[ref]Id.[/ref] Katz did not buy the copyright to exploit it, he bought the copyright to suppress it. Since the market effect is the most important of the factors, this alone should have tipped the fair use scales in favor of the defendant. Now, going west to the District Court for the Northern District of Illinois, we find the Court there ignoring the market effect of loss of revenue to the photographer. At issue was a picture taken at a parade for a Democratic candidate. The photo was then altered to show the candidate "driving away from the Illinois State Capitol with stolen money in the backseat and hundred dollar bills flying out of the open convertible."[ref]Galvin v. Illinois Republican Party, 2015 WL 5304625 District Court for the Northern District of Illinois 2015[/ref] Here the Court again finds the use "transformative" even though the photograph is not of the candidate being criticized, but a third party who was also a Plaintiff here.[ref]Id. at 4[/ref] Then the Court allows this factor to neutralize the fact that "[t]here's no good reason why defendants should be allowed to appropriate someone else's copyrighted efforts as the starting point in their lampoon, when so many noncopyrighted alternatives (including snapshots they could have taken themselves) were available" [citing] Kienitz v. Sconnie Nation LLC, [ref]766 F.3d 756, 759 (7th Cir.2014).[/ref]a ruling that is binding on this Court. This is where the "transformative" test goes wrong. The Illinois Republican Party could have used any photograph of the opposing politician. They could have taken a photo of their own. But they didn't. They took a photograph, without permission, and created a derivative work, also without permission, and failed to pay the photographer anything. The Court fails to find any market harm, stating "[a] basic comparison of the two works reveals that they cater to wholly different audiences. Anyone who wants an accurate depiction of the political parade or Mr. Yingling's campaign activities (for example, a media outlet interested in using the Photograph for a news story) would not plausibly license the Flyer instead."[ref]Galvin at 5[/ref] This is not the point. Virtually any alteration of a photograph will mean that the two works will not compete with each other in the marketplace. The point is the photographer is injured financially by the loss of revenue from not licensing the photograph, a factor that the Court glosses over by stating "[e]ven though the Defendants saved money by not licensing the Photograph or commissioning an original one of their own, it is clear that the Defendants' objectives were more "non-profit" than "commercial."[ref]Id. at 4[/ref] Had the Defendants offered to license the photograph and the photographer refused, then we would have a different analysis since there is no loss of revenue, much like Katz's purchase of the copyright in order to suppress the photograph. So, if the altered photograph is not of the opposing politician, and is not used to comment on the photo, what is the "justification for the very act of borrowing," as the Supreme Court requires? I can see none in the opinion as written. So, as these three cases vividly show, the whole concept of "transformative use" is an utter and complete mess. Please fix this, Supreme Court. Please!

Bikram Choudhury is the developer of the very popular "hot yoga" system, where a carefully selected series of 26 yoga positions is performed for 90 minutes in a room heated to 105 degrees.[ref]Downward dog duplication? Relax, yoga poses can't be copyrighted, court rules[/ref] The success of the system has made him very wealthy, and litigious.[ref]Id.[/ref] For over thirty years he has claimed that he, and only he can teach the method, or decide who else can teach his method.[ref]Id.[/ref] Backed by the copyright of his 1979 book, he has threatened competing yoga studies with litigation, and his website "asks people to report ‘illegal' Bikram studios."[ref]Id.[/ref] Some studios fought back leading to a settlement with Bikram.[ref]Id.[/ref] One studio has now "taken him to the mat," so to speak, and the results are not good for Bikram. Bikram sued Evolation Yoga, LLC, claiming that the competing studio infringed the copyright in Bikram's books by "substantial use of Bikram's Copyrighted Works in and as part of Defendants' offering of yoga classes"[ref]Bikram Yoga College of India v. Evolation Yoga LLC 2015 WL 5845415 9^th Circuit Court of Appeals 2015[/ref] Evolation prevailed at trial, and Bikram appealed. The Ninth Circuit Court of Appeals affirmed the District Court ruling, holding that the 26 pose sequence was an uncopyrightable method or system. In an earlier blog post dedicated to discussing claims for copyright in a recipe,[ref]Copyright in Recipes! Well Done or Half-Baked?[/ref] I recounted the provisions of Section 102(b) of the Copyright Act which states: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." As I have explained countless times to clients and students: it's not what you said, it's how you said it that gets the copyright. There's no doubt that Bikram has a copyright in his book, but that copyright does not extend to the system explained in the book, as Section 102(b) very clearly states. Bikram's legal position is most akin to saying "since I have a copyright in my recipe book, no one is allowed to make any of the dishes without my approval." That's not a winning argument. Bikram's case is further hamstrung by the fact that yoga is an ancient art, and all of the poses would have passed in the public domain years ago,[ref]Downward dog duplication? Relax, yoga poses can't be copyrighted, court rules[/ref] if they could be the subject of copyright at all. Which is precisely the ruling from the 9^th Circuit.[ref]Bikram at 1[/ref] Bikram's legal pleadings refer to "The Sequence" as "a ‘system' or a ‘method' designed to ‘systematically work every part of the body, to give all internal organs, all the veins, all the ligaments, and all the muscles everything they need to maintain optimum health and maximum function.'" This, of course, directly implicates the provisions of 102(b) that "The Sequence" is an uncopyrightable method or system. Equally unavailing is his argument of how the poses and the special sequence were arrived at after "many years" of constant research and trial.[ref]Bikram at 2[/ref] The Supreme Court over 20 years ago disposed of the "sweat of the brow" theory of copyright protection.[ref]Feist Publications, Inc. v. Rural Telephone Service Co. 499 US 340 (1991)[/ref] "The primary goal of copyright is not to reward the labor of authors, but [t]o promote the Progress of Science and the useful Arts."[ref]Id. at 349[/ref] Bikram's argument (that almost works) is that the poses are a "compilation" and thus copyrightable. According to the Copyright Act, a compilation is: "[A] work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship."[ref]17 USD 101[/ref] So, while no one has a copyright on a fact, a collection of facts in a database are the proper subject of copyright. So, while Bikram does not have a copyright on any individual poses, he contends that his selection and arrangement are, as a unit, copyrightable. The problem with this argument is he cannot escape the fact that "The Sequence" is simply a method or system to achieve personal well-being. The defendants are not selling knock-off copies of his book, they are simply using the method described in the book. As the Court observes: "The watchmaking treatise's author could not claim a copyright in the process of making a watch, however, by breaking down the process into multiple steps and labeling it a ‘compilation.'"[ref]Bikram at 6[/ref] Yet, by far, the most intriguing argument is that the "The Sequence" is in fact a "dance" and thus subject to copyright as a choreographic work. Bikram's first problem is that he never registered the poses as a dance. His book was registered as a "nondramatic literary work."[ref]Bikram at endnote 11[/ref] He did try to register the poses as a "work of the performing arts" but his registration attempt was rejected by the Registrar of Copyrights.[ref]Id.[/ref] This would seem to preclude his argument, since registration is a pre-requisite to filing an infringement action,[ref]17 USC 411[/ref] but the Court addresses it anyway. The Court cites to the Copyright Office's Compendium of Copyright Office Practices as the Copyright Act itself does not define either the term "dance" or "choreography." "The Compendium II defines ‘dance' as ‘static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.' (citation omitted) The ‘dance movements,' according to the Compendium II, ‘must be more than mere exercises, such as ‘jumping jacks' or walking steps.'"[ref]Bikram at 7[/ref] Bikram is already in trouble with this argument since it is clear that "The Sequence" is an exercise routine. But the Court takes the time to further bury the argument. "We recognize that the Sequence may involve ‘static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.' (citation omitted) So too would a method to churn butter or drill for oil. That is no accident: ‘successions of bodily movement' often serve basic functional purposes. Such movements do not become copyrightable as ‘choreographic works' when they are part and parcel of a process. Even if the Sequence could fit within some colloquial definitions of dance or choreography, it remains a process ineligible for copyright protection."[ref]Id.[/ref] So, no need to bend over backwards to avoid copyright infringement, yoga all you want.

As a general rule, I do not write blog posts about the filing of a copyright infringement lawsuit. At the stage when a complaint is filed, all that is present are the bare allegations, devoid of any proof, and as this complaint plainly shows, any kind of outrageous statement can be made. On September 21, 2015, the animal rights activists group People for the Ethical Treatment of Animals filed a Federal copyright infringement lawsuit on behalf of "Naruto," an Indonesian crested black macaque.[ref]Naruto et al v. David John Slater 2015 WL 5576938[/ref] Naruto, claims the lawsuit, is responsible for the famous "monkey selfie" that was the subject of a previous blog post.[ref]Monkey in the Middle: Who Owns the Monkey "Selfie"?[/ref] In case you have forgotten, this is the photo in question:

The lawsuit seeks damages from David Slater, the photographer who set up the shoot, and his book publisher.[ref]Naruto at 7[/ref] PETA seeks to collect all the proceeds from the monkey selfie which it claims will be used "solely for the benefit of Naruto, his community of crested macaques and preservation of their habitat…"[ref]Id.[/ref] Minus a few unavoidable administrative costs, and shipping and handling, I'm sure. So the real purpose of the lawsuit is money, and of course publicity for PETA. As for the second part, they have already succeeded. Every major news outlet has run a story on the lawsuit. This is not the first time that PETA has sued as the "next friend" of an animal with a lawsuit that, to be polite, greatly stretches the boundaries of coherent legal theory or reasoning. As reported by The Guardian: "Peta has on occasion pursued lawsuits that were widely viewed by other legal experts as offering little chance of success – for example, a 2011 lawsuit accusing the SeaWorld parks of keeping five killer whales in conditions that violate the US constitution's ban on slavery. A federal judge dismissed the suit, saying the 13th amendment applied only to humans."[ref]Peta sues to give copyright for 'monkey selfies' to macaque who snapped them[/ref] Thus, it should come as no surprise that the complaint is replete with legal errors and faulty logic. Firstly, there are questions as to whether PETA has correctly identified the monkey in question. All the previous reports had the monkey being a female. Yet PETA claims the monkey is a male. As this article form Motherboard points out: "[C]overage of the monkey selfie controversy last year identified the macaque as female. The photographer David Slater identifies the monkey as female in his book, Wildlife Personalities. PETA's own president, Ingrid Newkirk, identified the monkey as female in a 2014 essay arguing that the monkey should own copyright in the photos."[ref]Did PETA Name the Right Macaque in Its 'Monkey Selfie' Lawsuit?[/ref] "[The Defendant] [p]hotographer David Slater told us in an email, ‘All you need to know is PETA have no proof they are talking about the same monkey. They hope you will buy into their stunt because an expert is willing to say her monkey is the one in my photos without proof.'"[ref]Id.[/ref] Next is the question of the legal ability of PETA to have standing to bring the suit on behalf of Naruto, a legal concept known as "next friend." According to the Supreme Court of the United States: "'[N]ext friend' standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another. Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for ‘next friend' standing. First, a ‘next friend' must provide an adequate explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action. [citation omitted] Second, the ‘next friend' must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, [citation omitted] and it has been further suggested that a ‘next friend' must have some significant relationship with the real party in interest."[ref]Jonas H. WHITMORE, Individually and as Next Friend of Ronald Gene Simmons, Petitioner v. ARKANSAS et al. 495 U.S. 149, Supreme Court of the United States 1990.[/ref] PETA's penchant for seeking publicity by filing dodgy lawsuits may bring into question whether they have Naruto's best interest at heart, beyond just their saying so. I also fail to see how PETA has any significant relationship with Naruto. This is obviously why they are bringing Dr. Antje Engelhardt along for the ride as a co-plaintiff, since it is alleged that Dr. Englehardt has had contact with Naruto and studied him.[ref]Naruto at 4[/ref] However, if the Court rules Dr. Englehardt has standing as "next friend," this does not automatically confer standing on PETA. Next up, there is the fact that the U.S. Copyright Office has already issued a policy bulletin that "[t]he Office will not register works produced by nature, animals or plants."[ref]Monkey selfies do not qualify for copyright protection, US regulators say[/ref] Even further, as reported by the online journal of the American Bar Association: "The Office gave several specific examples of things that could not be copyrighted under this section, such as a mural painted by an elephant, a song authored by the Holy Spirit and a photograph taken by a monkey. (emphasis added) "According to the National Journal, Bill Roberts, acting associate register of copyrights and director of the office of public information, said the Copyright Office deliberately added real-life examples in order to avoid confusion."[ref]Id.[/ref] PETA disputes the legal precedent to be afforded an opinion of the Copyright Office stating: "My understanding is that they've never been asked to register a copy of the photograph. I believe they've never refused. And the Compendium is the Copyright Office's opinion on the state of law but is not authoritative. They're not the legislative body, they are not a court. And we respectfully disagree with their view on that."[ref]Did PETA Name the Right Macaque in Its 'Monkey Selfie' Lawsuit?[/ref] This is shaky reasoning on three points. Firstly, the Copyright Office has already said, in advance that they will not register Naruto's photograph, so saying that the Copyright Office haven't refused registration yet is a non-argument which carries no legal weight. Next, there is the fact that the Courts of the U.S., most notably the Ninth Circuit Court of Appeals which will govern this case, give great deference to the opinions of the Copyright Office: "We credit this expert opinion of the Copyright Office—the office charged with administration and enforcement of the copyright laws and registration. [citation omitted] The Copyright Office's well-reasoned position "reflects a ‘body of experience and informed judgment to which courts and litigants may properly resort for guidance.'"[ref]Garcia v. Google 786 F.3d 733 United States Court of Appeals, Ninth Circuit. 2015[/ref] Lastly, there is the whole problem of whose copyright law will be applied to the basic question of can a non-human being own a copyright? PETA takes the position that the photo is not a "United States Work" for the purposes of the Copyright Act.[ref]Naruto at 9[/ref] (There will be more about this further on.) This means that if the suit is correct, the country of origin is a country other than the United States. According to the Berne Convention, to which the U.S., Britain and Indonesia are all members, the "country of origin" is the country in which the work is first published.[ref]Berne Convention, Article 5, Section 4, available at Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)[/ref] This is most likely to be the UK where defendant David Slater is a citizen. Hold on here, because this gets technical. The Berne Convention states that "'published works' means works published with the consent of their authors."[ref]Berne Convention Article 3, Section 3[/ref] If Naruto is the sole author, it is doubtful that he gave permission for the publication, as it is pretty much a given that he does not understand what copyright or publication is. So even though the photo was undoubtedly published on a worldwide basis, Naruto's lack of consent might mean that his country of which he is a national is the law that governs, or the law of Indonesia, assuming of course that a non-human being is a "national" of any country. PETA's apparent assertion that Indonesia is the country of origin because the works were fixed there[ref]Naruto at 9[/ref] is incorrect, under the plain terms of the Berne Convention. The importance of this is that the copyright law of either the UK or Indonesia would have to be examined to decide who the author of the work was. If they were to decide under the applicable law that Naruto created the work alone, but was not an "author" because Naruto is not a human being, then the photo is not protected at all in its country of origin, and therefore is not protected in any Berne country since it is not a work which is "protected under this Convention." The other possibilities are that Naruto and Slater are co-authors or Slater is the sole author, which means there can be no viable action for infringement brought by Naruto, or its "next friend." For this reason alone, the complaint should be dismissed because PETA has failed to allege adequate facts to support their contention that Naruto is the sole owner of the copyright under the laws of the UK or Indonesia, a prerequisite to any enforcement of the copyright in the United States in reliance on the Berne Convention. The reason why PETA is claiming that the photo is not a "United States work" is to avoid the whole requirement that one must register with the Copyright Office before filing a copyright infringement lawsuit.[ref]17 USC 411[/ref] This requirement only applies if the work is a "United States work."[ref]17 USC 411(a)[/ref] According to section 101 of the Copyright Act, a work is a United States work if it is first published in the United States or "simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States." This obviously includes the Berne Convention. The U.S. Copyright Act does not define what "simultaneous publication" is, but the Berne Convention does. The Berne Convention states that "[a] work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication."[ref]Berne Convention, Article 3, Section 4[/ref] So if the photo was published in any Berne country and the U.S. within thirty days of each other, then the photo is a "United States work" and subject to the registration requirement. A registration, as discussed above, that is going to be summarily rejected by the Registrar of Copyrights. So now we come to the true question: can a monkey be an author for purposes of copyright? Here, PETA winds up hamstrung by its own arguments. If Naruto needs his "next friends" to litigate for him based upon his "mental incompetence, or other disability," how does he form the requisite intent to create a work of art? Consider this rather arrogant and snarky exchange between Jeffrey Kerr, the attorney who filed the suit for PETA, and a reporter for the Motherboard website. ……………………………………………………………………………………………….. "Does Naruto know about this lawsuit? [pause] Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly. The issue is as I've stated it. Does Naruto know about his selfies? [pause] I have the same response. Naruto certainly knew at the time that he was engaged in intentional conduct that is obvious from Mr. Slater's own description of the situation. And Naruto clearly engaged in the purposeful intentional conduct that resulted in the creation of the selfies. [Later on in the same interview] So you saying that you think Naruto knows these selfies exist, because he— That's not what I'm saying and you should not report that. What I am saying is, alleged in the lawsuit, that Naruto engaged in a series of purposeful, intentional actions. He is very bright. He was aware of the cause and effect relationship between pushing the shutter, his reflection in the camera—this is all admitted by Mr. Slater. The result of his conduct, the original works fixed in a tangible medium, resulted. And that is sufficient for copyright protection. Can a photographer intentionally create a photo if they don't know how a photo results from a camera? Yes, of course. ……………………………………………………………………………………. This is absolute nonsense. The words that PETA's attorney is carefully leaving out are the words "authorship" and "creativity." Remember that according to the United States Supreme Court, the Copyright Act requires "that the work was independently created by the author, and that it possesses at least some minimal degree of creativity."[ref]Feist Publications Inc. v Rural Telephone Service Co. 499 U.S.340 at 345, Supreme Court of the United States (1991) emphasis added[/ref] If Naruto does not understand that what he is holding is a camera, does not understand that the camera will make a visual record of whatever it is aimed at, and that he is creating a "selfie" by pressing the shutter, then he has not engaged in a creative act of authorship, he is simply playing with an object. So, not only is PETA refusing to go on the record to claim that Naruto knew he was creating a "selfie" but based on Slater's previous statements, as recounted on this blog, that despite hundreds of photographs being taken, only a few were usable and most were out of focus.[ref]Monkey in the Middle: Who Owns the Monkey "Selfie"?[/ref] Clearly Naruto had not even the slightest grasp of what he was doing. In addition, if Slater committed any act which shows "a minimal degree of creativity" then he, at the very worst, is a co-author and cannot be liable for infringement. If you need any more evidence that this suit is little more than a ridiculous publicity stunt, ask yourself: why hasn't PETA sued Wikimedia? Recall that this whole kerfuffle started because Wikimedia took the position that the monkey took the photo and thus the photo was in the public domain and allowed anyone to copy it. The most severe damage being done to Naruto's interest is by Wikimedia distributing the photo for free, not by the meager money being made by Slater. Slater agrees: "He added, in reference to the photos being posted on Wikipedia as being under the public domain, ‘And, WHY aren't PETA suing Wikimedia for loss of royalties? Important question!'"[ref]Did PETA Name the Right Macaque in Its 'Monkey Selfie' Lawsuit?[/ref] And finally, The Guardian quotes Harvard Law Professor Lawrence Tribe as commenting on the suit that: "'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.'"[ref]Id.[/ref]

The old adage that "justice is blind" came to mind again last week, but not in a good way. In the latest head-scratching decision from the 9^th Circuit Court, a Court of Appeals for the first time has ruled that an inanimate object portrayed in an audio-visual work was in fact a "character" capable of copyright protection. The case, DC Comics v. Towle,[ref]2015 WL 5569084 citations are to the Westlaw pagination.[/ref] pitted the venerable comic book company against a manufacturer of full scale, real-life, working "Batmobiles." The defendant, Mark Towle, produced two different models of the Batmobile. The first was patterned after the Batmobile as it appeared in the 1960's television show Batman.[ref]Id. at 3[/ref] The second was patterned after the Batmobile as it appeared in the 1989 feature film, Batman.[ref]Id.[/ref] He marketed both of the vehicles as "Batmobiles" and utilized the domain name batmobilereplicas.com to help him sell these rather expensive ($90,000) life sized toys.[ref]Id.[/ref] DC Comics sued Towle in 2011 alleging copyright infringement, trademark infringement and unfair competition.[ref]Id.[/ref] Towle defended on the grounds that the Batmobile was not copyrightable, that even if it was, that DC did not own the copyright of the Batmobile as it was depicted in the motion picture and television shows.[ref]Id.[/ref] He admitted copying the elements of the Batmobile from the audio-visual works in question,[ref]Id.[/ref] so all the standard elements of copyright infringement are present, if in fact a car can be protected by copyright. The District Court ruled in favor of DC Comics and Towle appealed to the 9^th Circuit Court of Appeals. The 9^th Circuit first dispensed with the defense that DC did not own copyright to the vehicles in question. It ruled that the reservation by DC of all of the merchandising rights to the depictions later made by ABC and Warner Bros. was sufficient to show ownership of the intellectual property. From there, the Court wades into uncharted waters. Previously, the 9^th Circuit had ruled that the car "Eleanor" from the original and remake of Gone in 60 Seconds "might" be eligible for copyright protection as a character.[ref]Halicki Films, LLC v, Sanderson Sales and Marketing, 547 F.3d 1213 (9^th Circuit Court of Appeals 2008)[/ref] Here, it takes a full blown stand that a car absolutely can qualify as a character. Citing to its previous decision in the Gone In 60 Seconds case, the Court boldly states "Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character…"[ref]DC Comics at 5.[/ref] The problem for the Court is that this particular holding does not appear in the previous ruling at all. In order to be a protectable character, the Court rules a three part test must be performed.

• The character must generally have "physical as well as conceptual qualities."
• The character must be "sufficiently delineated" to be recognizable as the same character whenever it appears. If the character has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.
• The character must be "especially distinctive" and "contain some unique elements of expression."[ref]Id. Citations omitted.[/ref]

The Court cites to pervious cases involving James Bond, Godzilla and Batman, for the proposition that a character can be the subject of copyright protection. Yet, in all of these cases, the character is a sentient being, and is not, well, a car. Yet the Court rushes toward the conclusion that none of this matters. "[T]he Batmobile is ‘especially distinctive' and contains unique elements of expression. In addition to its status as Batman's loyal bat-themed sidekick complete with the character traits and physical characteristics described above, the Batmobile also has its unique and highly recognizable name. It is not merely a stock character."[ref]Id. at 6.[/ref] Yes, but again, Justices, take off your blindfolds and look at it. It's a damn car! A fancy car, with an unconventional look, and lots of gadgets, but it is still a car! The Batmobile is not capable of independent action. It can only do what Batman tells it to do. Can you even comprehend Batmobile: The Motion Picture? Yep, two hours of watching the Batmobile parked in the BatCave. Thrilling. Are we now going to bestow "character" status on James Bond's tricked out Aston-Martin from Goldfinger? I fail to see how an inanimate object rises to the level of a "character." This does not mean that in order to qualify as a character it has to be a living, breathing, being. Certainly we can agree that C-3PO and R2-D2 from the Star Wars movies are characters, even though they are basically robots. They have personalities and are capable of independent action, outside of what Luke Skywalker or Obi-Wan Kenobi tells them to do. Even further, it would seem clear that the computer HAL 9000 from 2001: A Space Odyssey is a character. Though resolutely calm, it is obvious that he has emotions and feelings, and is certainly capable of independent action. This is shown when he murders Frank Poole and the astronauts in hibernation. Compare this against two famous objects which fuel all the action in their respective motion pictures. Is the "one ring" from The Lord of the Rings a character? It has "physical as well as conceptual qualities," it is recognizable whenever it appears across the three films, and its powers, especially its effect on the wearer, are "distinctive" and contain "unique elements of expression." Yet, as powerful as the one ring is, it could not prevent itself from being tossed into the volcanic pit of Mount Doom. Is the black bird statue of The Maltese Falcon a character? The entire movie revolves around who can possess this fabulous object. It certainly is instantly recognizable by film fans all over the world. But it is not capable of independent action. The troubling part is that the 9^th Circuit did not have to go as far as it did to reach the same result. Going back as far as the decorative lamp base from Mazer v. Stein,[ref]347 U.S.949 (Supreme Court of the United States 1954)[/ref] the Courts have constantly ruled that useful objects can have copyright protection if they have design elements separate and distinguishable from their function. The Batmobile would be the perfect example of this. It has numerous design features that are fanciful, such as the exaggerated "bat-fins" present in both iterations, as well as the "jet fighter-cockpit" motif which surrounds the passengers, and the suggestion that part of the propulsion of the Batmobile is due to rocket power. The District Court ruled on this very issue, holding "that the 1966 and 1989 Batmobiles were entitled to copyright protection as a sculptural work under 17 U.S.C. § 102(a)(5)."[ref]DC Comics at 11.[/ref] The 9^th Circuit, having already decided that the Batmobile is a copyrightable "character," relegates this ruling to a footnote. In my mind, a character must be capable of independent action in order to qualify as a "copyright protected" character, otherwise it is simply an object. We have years and years of ample case law to help the Courts determine whether the object has significant aesthetic and fanciful design features, apart from its function, and is thus capable of copyright protection. So, while the 9^th Circuit in this case reaches the right conclusion, it does so by injecting another level of complication and uncertainty into the copyright regime, which could use a little bit more of reliance on established case law and simplicity so as to generate more predictable guidelines for content creators and uniform conclusions for the Courts.