Copyright curiosities

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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27 Responses to Copyright curiosities

  1. Thanks as always for bringing us the issues in clear English!

    So my only comment would be on the macaque picture. Your quote above states, in part, that copyright applies to, “Materials produced **solely**…by animals are not copyrightable.” Isn’t there an argument to be made that this was not produced SOLELY by the macaque? Even without revision to the current language it would seem that the photographer has valid point – that the photo couldn’t have been produced without him. I’ll be interested to see what the ruling is. :-)

    • Judy G. Russell says:

      The photographer’s involvement in providing the equipment and in doing the post-processing is the only thing that he has to claim, Diana, and that will be at the heart of the issue. But I’m not sure how it will come out in the end. In other cases where, for example, people gave a monkey paper, art supplies etc., the end result was still considered non-copyrightable. How is a camera different?

      • Powers says:

        Indeed, a painting produced by an elephant is not copyrightable just because a human created the paint and the canvas.

      • I guess it’s the “post-processing” that seems like the grey area to me. With the art supplies example, once the monkey – or elephant – paints something it’s done. If the camera had just been left where it was for the monkeys to play with, there would be no picture on the internet. Well, maybe I should say, I don’t believe there would be a picture on the internet. I don’t want to insult the intelligence of the monkeys. :-)

        • GR Gordon says:

          One should never underestimate the intelligence of monkeys. Someone supposedly conducted a study, many years ago, in which a chimpanzee was given pencil and an answer sheet for the GRE exam (the graduate school version of the college entrance exam) to play with. When the chimp lost interest in putting pencil to paper, the answer sheet was submitted for scoring and it turned out the chimp had managed to mark enough boxes correctly, that even after deducting the penalty designed to eliminate any advantage to be gained by guessing at the answers, the chimp still earned a positive score. Not a good enough score to get into Yale, but a score, nonetheless.

          • Judy G. Russell says:

            The issue isn’t how smart the monkey is; it’s whether the law recognizes a copyright in an image created by the monkey.

        • Judy G. Russell says:

          Lots of folks think some of the things on the internet had to have been posted by monkeys…

  2. Mary Ann Thurmond says:

    Judy, I’m not going to sing “Happy Birthday” or any other song in public either but it’s not because I’m concerned about copyright laws!!!

  3. A. G. says:

    The word “solely” seems to be key here.

  4. Amy says:

    For years I used the first situation as a hypothetical in my Copyright Law class. The students always thought that there was no copyright as there was no authorship by the camera owner and no “authorship” in the animal.

    And now I am going to go sing Happy Birthday!

  5. Connie Breckenridge says:

    What if the monkey had not snapped the photo herself? What if the camera had taken the photos automatically the way the photographer had origianally intended? Would those photos be copyrightable? It seems to me that again, the photographer has shown no original work of authorship. The subject matter might change as various animals came and left the view, but he has done nothing to author the photos. He set the settings on the camera once, and let the camera take the photos. This assumes the photos would not be touched up or altered in some way later.

    • Judy G. Russell says:

      Not so sure in that case, Connie, since the angle, lighting, choice of locations, etc., would all have been set by the photographer.

  6. Adv. Dave Mitchell says:

    I agree with Diana Ritchie.

    I think the circumstances call for the criteria for copyright to be interpreted with a reasonable modicum of pragmatism.

    As per your quote from the Compendium, “the term ‘authorship” implies that, for a work to be copyrightable, it must OWE ITS ORIGIN to a human being.” The word “owe” means a degree of causality. Without the intervention and creativity of the photographer, the photograph would not exist. I would regard that as sufficient to make a copyright award.

    As to the second part, “materials produced SOLELY by nature, by plants, or by animals are not copyrightable.” No question — the macaque did not do it himself or herself, nor “solely” with the assistance of other animals, plants or Mother Nature. There was a clear human intervention and facilitation.

    To my mind, copyright protection should be recognised.

    Wikimedia would in my humble opinion need to find other grounds for arguing a right to publish.

    Look forward to hearing the result from the illustrious courthouse.

    Dave

    PS Please get the record and don’t let it get burnt …!

    • Judy G. Russell says:

      We’ll surely have to see what the courts make of this. I can accept an ownership interest in the image by the photographer — but am not so sure about a copyright interest.

    • T K says:

      I completely agree with Diana and Dave. The photos would not exist without the human, nor would paintings by animals. These things exist as a result of human endeavor. If we’re to give full credit to the animals, then THEY TOO need to be protected under copyright laws. Is that gonna happen? I doubt it!

      • T K says:

        Additonally, I don’t think the photo shoot and painting sessions are even analogous. In the case of painting, the animal is at least aware of creating something. In the case of the macaque photo session, the macaque had no idea anything was being created. He was not bringing any creativity to the session, while the photographer arrived on site with the intention of creating macaque photos, invested financially in equipment and travel to do so, owned the equipment which the macaque commenced using without provocation, and the photographer brought his own creativity to bear when he allowed the macaque to continue clicking. It seems to me that, in all kinds of art, the artist begins a project and then lets the creation process happen, and the photographer used his judgment to do so here.

        • Judy G. Russell says:

          The amount of effort involved (“sweat of the brow”) isn’t a factor: only the originality and creativity.

      • Judy G. Russell says:

        I doubt it — not any time soon, for sure.

  7. GR Gordon says:

    Oh, God, please don’t let PETA hear about this!

  8. Looks to me like the Macaque is making a monkey out of all of us. :)

  9. Pingback: WikiWeek In Review: 11 August 2014 | WikiTree Blog

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