The very strange case of the "monkey selfie"[ref]Monkey in the Middle: Who Owns the Monkey "Selfie"?[/ref] finally got the end it deserved, a truly wild case in which the Court, not the participants, refused to let the case die.
As recounted previously on this blog, the "animal rights" organization People for the Ethical Treatment of Animals filed suit against photographer David Slater on behalf of a monkey, or more correctly, a crested black macaque.[ref]Monkey in the Middle Redux: Animal Rights Group Sues to Claim Copyright On Behalf of Monkey[/ref] I will take pity on Mr. Slater and not reproduce the photograph once again, even though it is undoubtedly fair use. I think he's suffered enough.[ref]Monkey selfie photographer says he's broke: 'I'm thinking of dog walking'[/ref]
Way back when, in 2015, I expressed my extreme skepticism as to whether PETA could lawfully establish what is known as "standing," or the right to bring a lawsuit, especially where PETA, the actual entity bringing the lawsuit, has no real or threatened injury.
The District Court ruled against PETA on precisely this ground.[ref]Naruto v. Slater 2016 WL 362231, U.S. District Court for the Northern District of California 2016[/ref]
Now, in case you missed it, "Naruto" is the name given by PETA to the crested black macaque. Naruto was unavailable to answer the question as to whether he likes this name or not. But in ruling against standing the District Court held:
"Naruto is not an "author" within the meaning of the Copyright Act… The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act's authorship requirement, and guidance from the Copyright Office, they have not."[ref]Id. at 4[/ref]
Not content to leave well enough alone, PETA appealed, continuing the financial ruin rained upon Mr. Slater by themselves and WikiMedia. This has progressed to the point where Mr. Slater could not even afford airfare to San Francisco to attend oral arguments.[ref]Monkey selfie photographer says he's broke: 'I'm thinking of dog walking'[/ref]
Needless to say, the oral argument did not go well for PETA. As reported by The Guardian:
"'There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto," said Judge N Randy Smith. "What financial benefits apply to him? There's nothing.'"[ref]Id.[/ref]
And this:
"At one point, Judge Carlos Bea considered the question of how copyright passes to an author's heirs. ‘In the world of Naruto, is there legitimacy and illegitimacy?' Bea asked. ‘Are Naruto's offspring ‘children', as defined by the statute?'"[ref]Id.[/ref]
So, the writing being on the wall, but not yet on paper, PETA folded its tent by entering into a settlement agreement with Mr. Slater, and asking the Court to dismiss the case, without, of course, asking Naruto whether he thought this was a good idea or not.[ref]Naruto V. Slater 2018 WL 1902414 9th Circuit Court of Appeal 2018[/ref]
Understand that Courts are usually happy to dismiss cases in which a settlement has been reached. It leaves less work for them to do. Yet having gone through an entire round of briefs, and oral argument, the Court refused to let the case die. We now know why. In the written opinion released April 23, 2018, the Court lets PETA have it with both barrels.
"We feel compelled to note that PETA's deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of "friend."… But now, in the wake of PETA's proposed dismissal, Naruto is left without an advocate, his supposed "friend" having abandoned Naruto's substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA's institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own."[ref]Id. at endnote 3[/ref]
The concurring opinion goes further:
"Though it had previously attested it would ‘fulfill the duties of a next friend,' PETA forgot its self-appointed role. ‘A ‘next friend' does not [itself] become a party to the ... action in which [it] participates, but simply pursues the cause on behalf of [the party in interest].' (citation omitted). Whatever PETA did or did not do for Naruto…PETA made sure to protect itself and with the Joint Motion sought to manipulate this court to avoid further negative precedent contrary to its institutional objectives. PETA cleverly argues that, because Naruto is not a party to the settlement and Defendants have maintained that PETA does not have next-friend standing, Naruto should not be bound by judgments entered because of PETA's actions. But, clever arguments hardly conceal what is really occurring and the flip by PETA is quite surprising. One day, PETA maintains it will advance Naruto's interests, the next it maintains that Naruto cannot be bound by PETA's actions. It is clear: PETA's real motivation in this case was to advance its own interests, not Naruto's. PETA began this case purportedly seeking not only an injunction, but also a judgment ‘[d]eclaring Naruto to be the author and copyright owner of the Monkey Selfies with all attendant rights and privileges under law' and disgorgement. (citation omitted) After oral argument, none of those objectives are, apparently, worth pursuing. Rather, when it came down to a possible negative, precedential ruling from the panel, PETA quickly sought to protect the institution, not the claimed real party in interest. PETA used Naruto as a ‘pawn to be manipulated on a chessboard larger than his own case.'"[ref]Id. concurring opinion at endnote 11[/ref]
Ouch. But from where this commentator sits, right on the money.
Sort of like how the Electronic Frontier Foundation used Stephanie Lenz in the "dancing baby" case.[ref]Let's Not Go Crazy Here: The Dancing Baby and Fair Use[/ref]
But I digress.
The simple underpinning of the Court's majority opinion is that the Copyright Act, when it speaks of "spouses," "legitimate heirs," "widow," and "widower," did not contemplate animals, no matter how highly evolved, to be capable of owning copyrights.[ref]Naruto V. Slater 2018 WL 1902414 at 7[/ref]
The Copyright Office had previously come to the same conclusion.[ref]Monkey selfies do not qualify for copyright protection, US regulators say[/ref] The Court further rules:
"[I]f an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing. The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute. Therefore, based on this court's precedent in Cetacean, Naruto lacks statutory standing to sue under the Copyright Act."[ref]Naruto V. Slater 2018 WL 1902414 at 6[/ref]
The concurring opinion would have gone further: no animal can sue in Federal Court under "next friend" status.
"PETA brought a frivolous lawsuit here. The argument that animals have statutory standing to maintain a Copyright Act claim—or any property right claims—is an easy question. Under the holding in Cetacean Community v. Bush, (citation omitted), the Copyright Act, and basic property law, animals have no such rights."[ref]Id. at 8[/ref]
PETA is an organization which apparently can well afford to file and maintain frivolous lawsuits. According to this article, PETA reported $43 million in revenue in 2015.[ref]PETA settles monkey selfie court case - but at what cost?[/ref]
Slater, in turn, is struggling, according to this article in The Guardian. "‘I'm trying to become a tennis coach,' Slater said by phone on Wednesday from his home in Chepstow, Wales. ‘I'm even thinking about doing dog walking. I don't make enough money to pay income tax.'"[ref]Monkey selfie photographer says he's broke: 'I'm thinking of dog walking'[/ref]
Joining PETA in this wholesale pillaging of Mr. Slater's rights (and income) is WikiMedia, who started this whole shameless event by declaring Mr. Slater's photograph to be in the public domain, and refusing to take it down from their website.[ref]The Monkey Selfie: Why Nothing was Accomplished[/ref] Again, as reported by The Guardian:
"'Every photographer dreams of a photograph like this,' Slater said of the image of a primate grinning toothily into the lens. ‘If everybody gave me a pound for every time they used [the photograph], I'd probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I'm not.'"[ref]Monkey selfie photographer says he's broke: 'I'm thinking of dog walking'[/ref]
There are reports that Slater is considering suing WikiMedia.[ref]The Monkey Selfie: Why Nothing was Accomplished[/ref] I think he may very well have good grounds.
When this whole controversy first blew up, I wrote a detailed blog on the copyrightability of the photo in question.[ref]Monkey in the Middle: Who Owns the Monkey "Selfie"?[/ref] There I noted, under the Berne Treaty (to which the U.S. is a signatory), that the question of copyrightability, is governed by the law of the nation in which the work was first published. This now appears to be the United Kingdom, where Slater is a resident. And as I recounted earlier, it also appears that UK law is much more liberal in its treatment of authorship than the U.S. might be.
"…[U]nder UK law where an artistic work is generated by a computer, the person who makes the arrangements for creation is the copyright owner. Computer generated is narrowly defined in our law as meaning "without human involvement. It is arguable that the photographer is the owner on this basis or in equity – in other words on the grounds of fairness – because he owned the equipment and presumably had set up the camera for optimal focus and light in the jungle.'"[ref]Monkey 'selfie' picture sparks copyright row[/ref]
On this point, Slater is adamant that the photos did not happen by chance.
"[He] has long maintained that the selfies were the result of his ingenuity in coaxing the monkeys into pressing the shutter while looking into the lens, after he struggled to get them to keep their eyes open for a wide-angle close-up. ‘It wasn't serendipitous monkey behavior," he said. ‘It required a lot of knowledge on my behalf, a lot of perseverance, sweat and anguish, and all that stuff.'"[ref]Monkey selfie photographer says he's broke: 'I'm thinking of dog walking'[/ref]
There is one remaining bright spot for Slater. Attorney's fees for the appeal.
"Counsel for Slater and Wildlife requests that the court grant him appellate-stage attorneys' fees and remand to the district court for the determination of the amount of those fees.Counsel for Slater and Wildlife is entitled to attorneys' fees and costs for this appeal.(citation omitted) Thus, the request in the answering brief by Slater and Wildlife for an award of attorneys' fees on appeal is granted. The determination of an appropriate amount of fees on appeal is transferred to the district court pursuant to Ninth Circuit Rule 39-1.8."[ref]Naruto V. Slater 2018 WL 1902414 at 7[/ref]
It may turn out to be a very large award, one in keeping the very evident "monkeying around" that occurs in a frivolous lawsuit like this. A suit brought by ideologues to establish as law an extremist point of view, not right a wrong.
Bill Graham was certainly one of the most well-known concert promoters of the 1960's and 1970's rock music scene, running the famous Fillmore concert venues in both San Francisco and New York City.[ref]Fillmore East[/ref] He also made audio and video recordings of the bands that played his venues. Apparently, these recordings were made without getting any approvals or permissions from the performing artists.[ref]ABKCOMusic Inc., et al v. Sagan, et al 2018 WL 1746564 U.S. District Court for the Southern District of New York at 3[/ref]
This massive treasure trove of recordings which "reads like a veritable who's who of rock, soul, and alternative music, containing the performances of The Rolling Stones, The Who, the Grateful Dead, Willie Nelson, Ray Charles, Aretha Franklin, and Carlos Santana, to name a few"[ref]Id. at 1[/ref] became known as "Wolfgang's Vault," after Bill Graham's childhood nickname.[ref]Wolfgang's (Vault)[/ref]
For his part, Bill Graham did not commercially exploit any of these recordings during his lifetime, other than 10 instances of licensing material as a part of concert presentations, private parties and a few clips for such TV shows as VH-1's "Behind the Music."[ref]ABKCOMusic Inc., et al v. Sagan, et al at endnote 9.[/ref] After Graham's death, the entire collection was sold to Defendants William Sagan and Norton, LLC.[ref]Id. at 3[/ref] These comprised of 276 separate recordings.[ref]Id.[/ref] At the time of sale it was carefully noted by Bill Graham Archives that they made no representations or warranties that the purchaser would be able to commercially exploit the recordings.[ref]Id.[/ref] "In purchasing those recordings, Defendants never saw any performance contracts executed by the artists authorizing the recording of those performances, nor were they made aware that such agreements existed."[ref]Id.[/ref]
But who cares? This is the internet age! Who needs to get permission before you do something?
Sure enough, in 2002, Defendants started a website called Wolfgang's Vault. In 2006, the functionality of the site was expanded to provide audio and audio-video recordings made by Graham to be available for on-demand streaming and downloading.[ref]Id. at 4[/ref]
Licenses? None.[ref]Id.[/ref]
Only after the on demand streaming site had been up for a year, did the Defendants try to take the steps to have the material properly licensed. But, their licensing attempts were only directed towards mechanical licenses, defined as the right to reproduce audio-only copies of musical compositions. At no time did they seek synchronization licenses, the right to combine a song with a visual image.
Predictably, after the usual cease and desist letters were issued to the Defendants, and said cease and desist letters were predictably ignored by the Defendants, 26 music publishing companies filed suit. Incredibly, even after the suit was filed the Defendants added 36 more recordings of the Plaintiff publishers songs to their website.[ref]Id. at 6[/ref] Thus, it is no surprise that in a ruling issued April 9, 2018, a U.S. District Court ruled uniformly in favor of the Plaintiff music publishing companies, and ruled that the principal of Norton LLC, William Sagan, be personally liable for the acts of infringement.[ref]Id. at 19[/ref]
The most ridiculous argument advanced by Defendants was that somehow the compulsory licensing scheme of Section 115 of the Copyright Act protected their distribution of audio-visual works.[ref]Id. at 9[/ref] This, by the plain meaning of the section only applies to "phonorecords." The Copyright Act's definition of "phonorecords" specifically excludes sounds which are "accompanying a motion picture or other audio-visual work."[ref]17 USC Section 101[/ref] Further, all of the audio-visual recordings were made available for streaming before any license was sought. This, under the clear terms of section 115, forecloses the possibility of compulsory licensing.
The Judge spends far more time on this issue than necessary, but still in the space of a page, rejects the Defendants contentions, holding them liable for all of the infringements contained in 206 audio-visual recordings.[ref]ABKCOMusic Inc., et al v. Sagan, et al at 10[/ref]
The Defendants then try to bootstrap their lack of licensing of the audio only recordings by entering into agreements with three major record labels (Sony, Warner Bros. and UMG), purporting to grant them permission to exploit the artist's recordings.[ref]Id. at 11[/ref] The problem with these agreements, according to the Court, are numerous:[ref]Id. at 11-12[/ref]
- The agreements were entered into years after, sometimes decades after the recordings were made.
- Nowhere in the agreements does it contend the recordings were "lawfully made."
- No written consents by the artists recorded are attached.
- No identification of the artists purportedly covered by the agreement are included.
- Even if the performances were lawfully captured, there is no dispute that Defendants had no proper licenses to the musical compositions.
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