GOING BANANAS OVER A “MONKEY SELFIE”: A CRITICAL ANALYSIS ON A CASE OF COPYRIGHT INFRINGEMENT (By- Pritha Ghosh)
GOING BANANAS OVER A “MONKEY
SELFIE”: A CRITICAL ANALYSIS ON A CASE OF COPYRIGHT INFRINGEMENT
Authored by- Pritha Ghosh
Abstract
“An idea that is not dangerous is
unworthy of being called an idea at all”
-
Oscar Wilde
How worthy then is an idea to
photograph monkeys which results in an enormous legal battle that will serve as
a landmark judgment in the legal history of the United States?
David Slater, a wildlife photographer
had let the monkeys take over his camera equipment for a while. Little did he
know that it will result in a lawsuit which will be called “curious” and
absurd”, will question the scope of the statutory provisions itself.
In 2011 in Indonesia, a crested
macaque took a series of photographs (selfies) using David Slater’s camera.
Slater is a wildlife photographer who had gone to Indonesia for his work.
Later, he published a book containing the selfie which went viral on the
internet. Consequently, PETA (People for the Ethical Treatment of Animals)
filed a suit against Slater, on behalf of Naruto alleging that Slater had
committed copyright infringement by publishing the “Monkey Selfies”. Slater
filed a motion to dismiss on the grounds that the plaintiffs lacked standing.
This case posed quite a lot of
intriguing legal questions. The case dealt with the question of ownership of
the “Monkey Selfie” and expanded itself to question the legal standing of
non-human entities. It also questioned authorship under the Copyright Act and
how protection is given to intellectual property in the United States.
The Ninth Circuit Court of Appeals
(where the case was finally settled) did not clearly state its opinions
regarding the establishment of ownership and the issue of Copyright pertaining
to the case since the establishment of constitutional and statutory standing
was one of the main arguments made by the defendants.
Part I of this paper would expand on
the need for copyright protection and argue for the rightful ownership rights
of the defendant keeping at hand the various legal precedents set before us
through the deliverance of justice by the honorable courts. The chapter starts
with a brief introduction for the readers to the topics that are being dealt
with in this paper following the
analysis of the Copyright on the
“Monkey Selfies”.
Part II of this paper would involve
the interpretation of the doctrine of ‘misuse of copyright’ and study the
various aspects that relate to it closely. It will develop an understanding on
what constitutes copyright infringement and doctrine of fair use and
differentiate them on the basis of the legal procedures and outcomes pertaining
to them.
Limitations
This paper deals with a case which
was adjudicated in the United States. The plaint was filed in the district
Court and it went on to the Ninth Circuit Court of Appeals. Therefore, it is
limited to the Copyright Act, 1976 of the United States. The author recognizes
that the case falls under the internet jurisdiction which involves the enormous
complexity of falling under an international nature of network. Thus, this
paper proceeds with strict adherence to the fact that copyright law is national
in nature and does dive into the jurisdictional issue. Part I uses the judgment
given in a European Court and extracts what is needed to justify the relevant
issue.
Statement Of Purpose
The aim of this research paper is to
study the need for copyright laws under intellectual property and establish the
case of Naruto v. Slater[1],
giving a detailed analysis of the copyright ownership issue. This paper will
also study the legal doctrines of ‘misuse of copyright’ and analyze the key
challenges that its use involves for a common man.
Research Questions
I. Why do the ‘Monkey Selfies’ need
copyright protection? If so, who will be the rightful owner of it?
II. What are the challenges involving the
doctrine of ‘misuse of copyright’?
Literature Review
The Monkey Selfie: Copyright Lessons for Originality in Photographs and
Internet Jurisdiction by Andres Guadamuz
The author dismantles the
inaccuracies regarding the monkey selfie case and makes an argument for the
subsistence of copyright in the monkey selfie picture drawn in the favor of the
defendant. He further states that the mere facts of the case should make a
strong case against the allegations made against the defendant. This paper
gives a detailed analysis of the case going into topics like jurisdiction
issues, originality and goes onto answer and establish the questions of
copyright that have been raised by the courts. The author goes beyond the
copyright law perspective and analyzes the internet policy issues and further
talks about the prevalence of American-centric legal interpretation of online conflicts.
Naruto V. Slater[2]: One Small Snap for a Monkey, One Giant Lawsuit for Animal-Kind by
Matthew P. Hooker
The author focuses on the issues of
jurisdictional standing and the question of copyright ownership of animals and
establishes the question of legal standing for non-human-entities. It covers
the entirety of the opinions given in courts by the honorable judges during the
Court proceedings and subsequently analyses the consequences and implications
of the case on other non-human entities.
Dr. Ashok K. Jain, Intellectual Property Law – I, Ascent Publications,
2019
The author explains the meaning,
scope and nature of intellectual property. The book gives an introduction to
IPR and describes its evolution and importance in contemporary contexts. It expands
on Copyright and gives a brief description of its importance under TRIPS (Trade
Related Intellectual Property Rights) which introduces the reader to the ‘fair
use’ doctrine.
I. Why Do The
“Monkey Selfies” Need Copyright Protection?
If So, Who
Will Be The Rightful Owner Of It?
The need for Intellectual Property Rights
Wipo (World Intellectual Property Organization,
1967) Defines ‘Intellectual Property’ As “Literary, Artistic And Scientific
Works, Performances Of Performing Artists, Phonograms And Broadcasts,
Inventions In All Fields Of Human Endeavor, Trademarks…; Protection Against
Unfair Competition And All Other Rights Resulting From Intellectual Activity In
The Industrial, Scientific, Literary And Artistic Fields.”
It Allows Individuals To Assert Ownership Rights On
The Outcomes Of Their Creativity And Innovative Activity In The Same Way As
Physical Property.[3]
The Progress Of Humanity Relies On The Advancementof
Thought And Expression Of Individuals To Creation Of New Forms Of Art And Technology.Intellectual
Property Rights Encourage Investment In Creativity And Innovation. It Gives The
Creator The Requisite Incentives For His Creativity. The Promotion And
Protection Of Such Property Thus Encourages Socio-Economic Growth And Enhances
The Quality Of Life. Nations Give Statutory Expression To The Economic Rights
Of Creators In Their Creations And To The Rights Of Public In Accessing Those
Creations.
Copyright Is Granted In Respect Of Original
Literary, Musical Artistic Or Audio-Visual Works. The Rights Include The Right
Of Reproduction And Communication To The Public Which Are Pertinent To This
Paper.
Copyright
Protection for the “Monkey Selfies”
The question of copyright protection for the “Monkey
Selfies” arises when we look into the sequence of events in the case. Slater
has maintained that he had intentionally set up the camera equipment for the
monkeys to interact with it.[4]In the original
account of the incident, what happened was not only an isolated act of a monkey
taking a picture, it took hundreds.
The question of originality can be asserted by the
subsequent judgement in Painer v. Standard Verlags GmbH[5],
in the European court.
The Court restated that copyright is
available only in relation to a subject-matter, such as a[portrait]
photographwhere
"… the photographer can choose the background, the
subject's pose and the lighting. When taking a portrait photograph, he can
choose the framing, the angle of view and the atmosphere created. Finally, when
selecting the snapshot, the photographer may choose from a variety of
developing techniques the one he wishes to adopt or, where appropriate, use
computer software. By making those various choices, the author of a portrait
photograph can stamp the work created with his "personal touch"”.[6]
Thus, when it comes to photographs,
it is important to take into consideration the efforts and thought process
involved as well as the production phase. The details in the photograph like
the framing, angle of view and lighting, etc. are subjective to each
photographer and indicate the creation of a “personal touch”. Selection is
another important element. The macaque monkey had taken several photographs
from the camera however, the process of selection of the particular “monkey
selfie” from among those was done by Slater. Duchamp’s Fountain is one instance
of “found objects” in which an artist selects an everyday object and turns it
into an important expression of creativity. Hence, purpose and selection are
important. In the case of Temple Islands
Collections v. New English Teas[7],
the Court held that for photographs “the composition is important…the bringing
together of different elements at the right place and the right time are enough
to prove intellectual creation” and therefore should have copyright. [8]
Therefore, given that all the
elements have been satisfied for the originality of the photograph, it can be
strongly argued that Slater would be the copyright owner of the “monkey
selfie”.
I.
What are the challenges involving
the doctrine of ‘misuse of copyrights’?
“Take Not From Others To Such An Extent In Such A
Manner That You Would Be Resentful If They So Took From You.” Is The Golden
Rule In Copyright Law That Was Established In The Case Of Harper & Row V.
Nation Enterprises[9].
The Creative Work Of An Artist Entitles Him To A
“Right To Property”. The Exclusive Rights That He Gains From The Mere Creation
Of The Work Need Not Always Be Registered With The Copyright Office. Any
Invasion In This Right Results In Copyright Infringement And Entails Strict
Legal Action. The Particular Case Of Naruto Was Filed Under Copyright
Infringement. On The
Other Hand, The Doctrine Of ‘Misuse Of Copyright’ Is
An Affirmative Defence Which Is Derived From The Doctrine Of “Unclean Hands”.
The Supreme Courtof United States Has On Several Occasions Referred To The
Possibility Of Raising A Copyright Misuse Defence To An Infringement Action.
Why Then Was This Doctrine Not Used By The
Defendants As A Defence Again The Allegations In Court?
The Supreme Court, Despite Referring To This
Doctrine Has Never Applied Or Explicitly Validated This Defence. As A
Consequence Of This, The Doctrine Has Presumptive Legitimacy.[10]
The Doctrine Of ‘Misuse Of Copyright’ Can Be Best
Understood Along With The Explanation Of The Doctrine Of “Unclean Hands”.
According To The “Unclean Hands” Doctrine, A Plaintiff Seeking Equitable Relief
Should Be Denied Such Relief If He Does Not Come Into The Court With “Clean
Hands”. The Unclean Hands Defence Consists Of Two Requirements: First, That The
Plaintiff’s Misconduct Directly And Immediately Relates To The Litigated
Transaction; Second, That The Plaintiff’s Misconduct Has Harmed The Defendant.
It Is Important To Note Here That The Doctrine Of Misuse Does Not Provide
Affirmative Relief But Only Acts As A Defence. This Doctrine Extends To Unfair
Competition As Well As Violations Of Public Policy. Largely, The Doctrine Has
Been Used In Cases Involving Patent Law But It Has Also Been Recognised In The
Field Of Copyright Law.
In The Case Of Naruto V. Slater[11],
The Defendant I.E., Slater Could Have Clearly Negated The Doctrine Of “Unclean
Hands” Since The Lawsuit Filed By The Plaintiff Had Harmed The Defendant.
Slater Had To Not Only Bear The Cost Of Litigation In An American Court (Being
A Britisher Himself), But Also The Cost Of Strenuous Amounts Of Pressure On His
Photography Career. The Ninth Circuit Had Held That There Was No Copyright
Infringement Case That Can Be Made Due To The Lack Of Statutory Standing Of The
Monkey. This Piece Of Legislation Highlighted The Underlying Issue – That Of
Peta Filing A Lawsuit In The Court Of Law With The Excuse Of Having A “Next
Friend” Standing On Behalf Of Naruto. The Court Held That Peta Had Failed To
Establish A Significant Relationship With Naruto And Therefore Did Not Have Any
Standing As A ‘Next Friend’.
As A Consequence Of The Lack Of Any Statutory
Standing By Peta, It Was Largely Written That Peta Had Only Filed For A Lawsuit
With The Intention Of Personal Gains For Its Corporation Rather Than For The
Benefit Of Naruto, A Macaque Monkey In The Reserve In Indonesia.
Naruto (Peta) Had Lacked Statutory And
Constitutional Standing. In Case Any One Of These Standings Could Have Been
Established, Slater Would Have Been Free To Use The Doctrine Of ‘Misuse Of
Copyright’ Against The Copyright Infringement Claim. The Success Of The Same
However, Is Put Into Question Looking Into The Fact That The Supreme Court Has
Not Yet Validated The Same. Thus, We Conclude That Regardless Of The Fact That
It Was Not Used In This Particular Case, The Doctrine Of ‘Misuse Of Copyright’
Is A Fair And Essential Defence Against The Claims Of Copyright Infringement.
Suggestions
The Present Case Was Dismissed In The Court Of Law
On The Grounds Of Lack Of Statutory Standing Of Naruto. In The Process Of
Research For The Current Paper, The Author Has Recognised The Lack Of Research
On The Topic Of “Statutory Standing In Copyright Laws For A Non-Human Entity”
And Would Thus Like To Propose The Same As A Suggestion For Future Research.
This May Eventually Lead To The Expansion Of The Owners Of Copyright And Thus
Grant Non-Human Entities Like Animals The Same Grounds Of Ownership As Humans.
Conclusion
The Author Hopes That The Analysis Provided Will
Point To The Inaccuracies In The Monkey Selfie Case And Establish The Arguments
An A Legally Sound Manner. It Is Hoped That Based On The Facts Of The Case And
The Relevant Rulings In The United States And The European Courts, We Can Come
To A Conclusion About The Ownership Of The Selfies. It Is Extremely Important
For The Survival And Service Of Independent Photographers To Be Have A
Universal Recognition Of The Art Of Photography. Leo Tolstoy Remarked That “An
Artist Creates As A Way Of Communicating Feelings To Other People- Oftentimes,
Feelings That Can’t Be Expressed In Mere Words”. Such Expression Is True For
All Forms Of Art Including That Of Photography. It Has Been Said By Cicero That
The “Safety Of The People Shall Be The Highest Law”. Thus, The Law Shall
Protect Everyone From Unnecessary Litigation Which Is Motivated By Ill
Intentions.
Bibliography
Primary
Sources
Cases
Naruto V. Slater, 16-15469 (9th Circ.:2018)
Painer V. Standard Verlags Gmbh, C- 145/10 (The
Court Of Justice Of European Union, 2011)
Temple Islands Collections V. New English Teas Pcc 1
(2012)
Harper & Row V. Nation Enterprises, 471 U.S. 539
(1985)
Secondary
Sources
Books
Dr. Ashok Jain, Intellectual Property Law- I, Ed.
Iii (2011) P.1-2
Articles
The Monkey Selfie: Copyright Lessons For Originality
In Photographs And Internet Jurisdiction, Author : Andres Guadamuz, Source:
Internet Policy Review, Vol. 5, Issue 1
Naruto V. Slater: One Small Step For A Monkey, One
Giant Lawsuit For Animal Kind, Author: Matthew P. Hooker, Source: Wake Forest
Law Review
Why A Monkey’s Action Of Taking A Selfie Should
Expand The Definition Of An Author In The Copyright Act, Author: David
Scheider, Source: Touro Law Review, Vol. 34 No. 20
Misusing Misuse : Why Copyright Misuse Is
Unnecessary, Author: Meg Dolan, Source: Depaul Journal Of Art, Technology &
Intellectual Property Law, Vol. 17, Article 2.