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Of animals and birthdays

Two copyright issues have been swirling online in recent days which — despite the fact that neither of them particularly impacts genealogists — is kind of neat and kind of cool.

It’s neat because the issues themselves are rather intriguing. One is whether a photograph can be copyrighted if the photographer was an animal. And the second is the ownership of the copyright on the song “Happy Birthday to You.”

macaqueSince both of these have been particularly called to The Legal Genealogist‘s attention,1 and since The Legal Genealogist is hardly shy about chiming in on copyright issues… here goes.

The animal issue arises from a dispute between British nature photographer David Slater and Wikimedia Commons over photographs of the female Celebes crested macaque you see here illustrating this post.

Slater says the photo is copyright-protected and he owns the copyright. Wikimedia Commons takes the position that nobody owns the copyright.2

Since this is obviously a great photo, and it was taken in 2011, when copyright protection began automatically the minute the picture was taken, how can it possibly not be copyrighted?

Because it was the macaque — the monkey — that took the photo.

Slater had traveled to Indonesia, set up his equipment to take pictures automatically, and then watched as one of the macaques actually hit the button to take a picture. Intrigued by the sound, the macaque continued to press the button and took hundreds of pictures.3

Macaque selfies.

Slater contends that the images wouldn’t exist if he hadn’t set up the equipment, and that he did all the post-processing of the images to make them useable, so he’s entitled to copyright protection.4

Wikimedia Commons takes the position that any image created by an animal is in the public domain.5

So who’s right?

The courts ultimately will decide, but it sure looks like the U.S. Copyright Office would side with Wikimedia Commons. In its latest Compendium II of Copyright Office Practices, the Copyright Office flatly stated:

In order for a work to be the subject matter of copyright under the current law, it must be an original work of authorship. Quality, aesthetic merit, ingenuity, and uniqueness are not considered in determining the copyrightability of a work. …

The term “authorship” implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.6

The Compendium is undergoing an update right now,7 so it’s anybody’s guess whether this section will be among those revised. But for now? “Materials produced … by animals are not copyrightable.”

The birthday issue keeps coming up because of a claim that the simple little song “Happy Birthday to You” is copyrighted — meaning the copyright owner can (and does) charge a fee every time it is performed in public.8

For years, the firm Warner/Chappell has claimed that it acquired the rights to this song through lyrics that appeared in a songbook in 1924 and a piano arrangement that was published in 1935. When a movie company wanted to use it in a documentary about the song, the company said the license fee would be $1,500. Instead, the movie company sued.9

It brought a class action suit against Warner/Chappell that not only seeks to invalidate the copyright but also asks that the company be made to give back the millions of dollars in licensing fees it’s collected over the years. As of this morning, checking the federal court docket in the Central District of California, the case was continuing to make its ponderous way through the litigation process with the usual fights over who has to turn over what documents to whom.10

It sure looks to me like the song ought to be out of copyright by now. The evidence submitted for the company that’s suing argues that the tune was first published as “Good Morning to All” in 1893, and that the “happy birthday” lyrics were published as being sung to that tune as early as 1911. If that evidence holds up in court, then any copyright claim should be over: anything published in the United States before 1923 is out of copyright now.

For now, however, the song is still under copyright and The Legal Genealogist isn’t going to sing it in a public recording for fear of getting hit with a bill for licensing fees.

So… no to the animals and yes to the birthday song.

Definitely neat. And definitely cool.

It’s cool because the fact that both of these were circulating among genealogists for comment shows our community is interested in copyright — concerned about its impacts — curious to know what the law is.

And that, in the long run, can only benefit us by helping to keep us out of trouble.


SOURCES

  1. For the monkey photo, see Thomas MacEntee, status update, 6 August 2014, Facebook (http://www.facebook.com : accessed 7 Aug 2014), and Patrice Green, status update, 7 August 2014, Google+ (https://plus.google.com/ : accessed 7 Aug 2014). For the birthday song, see Michael Leclerc, status update, 27 July 2014, Facebook (http://www.facebook.com : accessed 7 Aug 2014), and Ann Royal, status update, 27 July 2014, Facebook (http://www.facebook.com : accessed 7 Aug 2014).
  2. See generally Ashley Feinberg, “Wikimedia Won’t Take Down This Photo Because a Monkey Took It,” Gizmodo, posted 6 Aug 2014 (http://gizmodo.com/ : accessed 7 Aug 2014).
  3. Ibid.
  4. Ibid.
  5. See generally “Monkey Selfie,” Requests for Content Alteration & Takedown, Wikimedia Foundation Transparency Report (http://transparency.wikimedia.org/content.html : accessed 7 Aug 2014).
  6. U.S. Copyright Office, Compendium II of Copyright Office Practices, §202.02(b); html version, reproduced from an OCR scan of the compendium (http://www.copyrightcompendium.com : accessed 7 Aug 2014).
  7. U.S. Copyright Office, Compendium II of Copyright Office Practices (http://www.copyright.gov/compendium/ : accessed 7 Aug 2014).
  8. See Mike Masnick, “Lawsuit Filed To Prove Happy Birthday Is In The Public Domain; Demands Warner Pay Back Millions Of License Fees,” TechDirt, posted 13 June 2013 (https://www.techdirt.com/ : accessed 7 Aug 2014).
  9. See Eriq Gardner, “‘Happy Birthday’ for All: Filmmaker Aims to Free Song From Copyright Grip,Hollywood, Esq., posted 13 June 2013 (http://www.hollywoodreporter.com/ : accessed 7 Aug 2014).
  10. Marya v. Warner Chappell Music Inc., No. 2:13-cv-04460-GHK-MRW, U.S. District Court for the Central District of California, CMECF docket, PACER (http://www.pacer.gov/ : accessed 7 Aug 2014).
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