Blog by Richard Heagy
Naruto: I want my royalties!
WARNING! If you have no sense of humour, stop reading. If you make it to the end of this article, you may learn quite a bit about copyright law.
The bruhaha all started when Wikimedia Commons refused to take down a selfie taken by an Indonesian monkey, actually a macaque. British wildlife photographer David Slater claimed that he owned the copyright to the photograph as his camera had been used. However, it appears that the macaque somehow got hold of the camera and took a now famous self-portrait (‘selfie’) baring his two large front teeth. Wikimedia refused Slater’s take-down request and claims that no one owns the copyright so that the photo is in the public domain. The US Copyright Office agrees and has updated its rules to say that it will not register a copyright for photos taken by animals. Compendium of U. S. Copyright Office Practices, Third Edition (2014), hereafter referred to as the Compendium. If you think this article is long, try reading all 1,288 pages of the Compendium. Subsequent to the filing of the lawsuit mentioned below (Naruto v. Slater), Slater asserted that the ‘monkey’ in the selfie is not Naruto, but a female named Ella. However, this article will refer to the celebrity in question as Naruto.
This of course led to numerous articles by lawyers and others about the applicability of copyright laws (primarily those of the United States, with some mention of the United Kingdom, Australia and even the UAE) to selfies (photographs) taken by monkeys and other animals. Not to be left out, PETA (People for the Ethical Treatment of Animals) added its two-bits by filing a lawsuit against the British photographer (David Slater), his UK company (Wildlife Personalities Limited) and his US publisher (Blurb, Inc.) for damages on behalf of the monkey (dubbed ‘Naruto’), claiming that Naruto owns the copyright to the selfie. The suit was filed on behalf of Naruto by PETA and Dr. Antje Engelhardt (a German primatologist who has studied Sula crested macaques for several years) as Next Friends. A cynic might speculate that PETA filed such a frivolous lawsuit to gain publicity, but do not forget—strange results can happen in the Ninth Circuit. PETA also asked for a court order allowing it to administer all proceeds from the photos for the benefit of Naruto, his family and his community, including preservation of their habitat. Any such administrator would have to act in a fiduciary capacity on behalf of the copyright owner—Naruto; any funds spent for family or others in the community would appear to be a breach of fiduciary duty. This aspect has apparently been overlooked by PETA and its lawyers.
JURY TRIAL – WITH OR WITHOUT MONKEYS
The complaint also asked for a jury trial. If Defendant files a countersuit, Naruto could ask for a jury of his peers, which he might argue should require macaques (or at least monkeys) on the jury. Undoubtedly, someone would step forward to provide translation services, another opportunity for PETA to do more good works. Although this right is generally restricted to criminal trials, it would be criminal not to apply it here, especially in the Ninth Circuit, where strange things often happen; also, the seventh Amendment of the US Constitution guarantees the right to a jury trial in certain civil cases. Courts have interpreted this to mean a right to an impartial jury chosen from a cross-section or broad spectrum of the community. Application of this rule means that jury selection must be non-discriminatory and cannot exclude a group of which the defendant is a member (monkeys in this case). On the other hand, a defendant is not entitled to have a member of his or her class on the jury. Thus, Naruto could not insist that a jury include a monkey.
How could anyone consider this to be frivolous litigation when the good people at PETA are willing to take on the arduous task of managing Naruto’s money on his behalf; not an easy burden in these days of meagre returns at best and gyrations in the securities and commodities markets. In support of PETA, if you look into the large orange-red eyes of Naruto in the selfie, although he is grinning, he is clearly saying ‘I want my royalties’.
IMAGE RIGHTS (BAILIWICK of GUERNSEY) ORDINANCE
This photo has ‘personality’ written all over it, so one might suggest registration of Naruto’s image under The Image Rights (Bailiwick of Guernsey) Ordinance (2012). Although few would deny that Naruto has personality, he does not meet the definition of a personnage (i.e., a natural person, defined as a human being; a legal person; or a fictional character of a human or non-human) stated in Section 1 of the Ordinance. However, this obstacle was overcome by using Slaters’s company instead. On October 31, 2014 the name ‘Wildlife Personalities Limited’ was filed as a ‘registered personality’, together with the registration of three images. One is the representative photograph of the registered personality, which gives the appearance of being a rectangular shaped logo, containing a photo of Naruto (unnamed) with the words ‘Wildlife Personalities.’ The other two images consist of the same photo of Naruto in the logo and one of another macaque, both unnamed in the filings.
Registration protects the commercial use of personalities and images and extends to unregistered images associated with a registered personality, so that it would cover additional macaque photos owned by Wildlife Personalities. The Ordinance protects against unauthorised use of protected images for commercial or financial purposes and has several exceptions, including fair dealing for the purposes of news reporting, commentary and satire. Subject to the foregoing exceptions the image of Naruto is protected under the Guernsey Ordinance, but it remains to be seen to what extent the provisions of this unique law will be enforceable outside of Guernsey.
WHAT LAW APPLIES?
Getting back to the case at hand, the first question should be what law applies—substantive and procedural—as the parties span the globe. PETA, a Virginia corporation, together with Dr. Antje Engelhardt, has filed suit in a US District Court in California on behalf of a monkey last known to be living in Indonesia, for copyright violation of selfies taken by a monkey in Indonesia, against British photographer David Slater and his publisher Blurb, Inc. (a Delaware corporation with its principal place of business in San Francisco), and thrown in for good measure (as lawyers tend to do) a UK limited company (Wildlife Personalities, Ltd) owned by Slater, with no apparent US contacts. Why wasn’t Wikimedia Commons also listed as a defendant? What we have here is a bowl of animal crackers with elements of the Marx Brothers.
Naruto’s ‘Complaint for Copyright Infringement’ alleges that Naruto made the monkey selfies in Sulawesi, Indonesia, that none of these images is a ‘United States Work’, and therefore no US copyright registration is required to maintain the action. The case should have been tossed out right there for failing to plead sufficiently, as the crutial point is where the selfie was first published, not where it was made. In order to ‘not be a United States Work’ the plaintiff is required to plead that the selfie was first ‘published’ (not made) outside the United States, which as it turns out was the United Kingdom. ‘Once the plaintiff has proven publication, he must then prove that the publication was, in fact, the first publication, and that the geographic extent of his first publication diverges from the statutory definition of a “United States Work”’. Kernel Records Oy v. Mosley 934 F.3d 1294 (11th Cir. 2012). You might think this would prompt someone to consider which copyright law should apply, but apparently not; very few of the ‘monkey selfie’ articles mention the question of jurisdiction or applicable law.
Defendants filed a motion to dismiss the complaint on the basis of lack of standing and failure to state a claim upon which relief can be granted, but did not request dismissal on the grounds of forum non conveniens, the proper forum being Indonesia on the basis that its copyright law should apply rather than US copyright law. Halo Creative & Design Ltd. v. Comptoir Des Indes, Inc., No. 15-1375 (Fed. Cir. Mar. 14, 2016). Aside from creativity or originality requirements, copyright comes into existence immediately upon an author taking a picture with a camera as it then becomes fixed in a tangible medium—the photo having been taken in Indonesia. Defendants’ motion also failed to request dismissal based on lack of personal jurisdiction—discussed below.
SPIDERMAN’s NINTH CIRCUIT LONG-ARM JURISDICTIONAL REACH
The District Court in Naruto v. Slater did not need Spiderman to stretch its long-arm jurisdiction from San Francisco to London (and then backtrack to Wales). It is not well-known, but federal and state judges in the Ninth Circuit not only have law clerks, but have ready access to chiropractors to alleviate the symptoms caused by frequent long-arm stretching.
The plaintiffs alleged that the District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a) based on the suit arising under US copyright law, not mentioning an alternative basis for jurisdiction based on diversity of citizenship under § 1332, which might have made some interesting commentary and would have required a finding that Naruto was a citizen or subject of a foreign state (Indonesia), keeping in mind that the plaintiff was Naruto, not PETA or Dr. Engelhardt (merely Next Friends).
There is no federal statute governing personal jurisdiction concerning copyright law, hence the law of the state in which the district court sits—California—applies. Kip Rano v. Sipa Press, Inc. 987 F.2d 580 (9th Cir. 1993), which also states that litigation against an alien defendant requires a higher jurisdictional barrier than litigation against a citizen of a sister state. California has adopted a typical long-arm statute, rendering jurisdiction coextensive with the outer limits of due process. Data Disc v. System Tech Assoc., 557 F.2d 1280 (9th Cir. 1977). The district court apparently accepted Plaintiffs’ assertion (without discussion) that it had personal jurisdiction over Slater and Wildlife Personalities Limited (a UK company) based on allegations that a substantial part of their infringing conduct occurred in its judicial district. Personal jurisdiction over Blurb, Inc. was based on the location of its principal place of business and its alleged copyright infringement occurring in the judicial district.
On a motion to dismiss all factual allegations set forth in the complaint are taken as true and construed in the light most favourable to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2008). Although the district court in Naruto v. Slater stated that the ‘court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences”,’ it seems to have ignored such conclusory allegations.
PERSONAL JURISDICTION SPANS THE GLOBE
The assertion of personal jurisdiction over David Slater (a resident of the United Kingdom) based on an allegation that a ‘substantial part’ of his infringing conduct occurred ‘in this judicial district’ (Northern California) is unsupported by any factual allegations. Slater is an internationally known wildlife photographer located in the United Kingdom who sells images—not books—online from his UK website (www.djsphotography.co.uk) to customers around the world; the statement that a substantial part of his infringement (selling photos) in Northern California seems quite a stretch, but maybe not in the Ninth Circuit. Sales of these images occur in the UK either upon electronic transmission, not upon delivery in California or elsewhere, or upon shipment of prints from the UK. Jurisdiction over Slater insofar as relying on the infringement occurring in California is also questionable in light of the recent decision in Pablo Star Ltd. v. The Welsh Government (S.D.N.Y. Mar. 16. 2016).
The book distribution agreement between Blurb and Slater grants Blurb a non-exclusive license to reproduce, display, modify and reformat the content of a book—‘Wildlife Personalities’—that contains photos of Naruto for purposes of printing, distribution and making it available through the Blurb Bookstore. Customers who buy the book through the Bookstore are deemed to be Blurb’s customers, not Slater’s. Although Blurb’s principal place of business is in California, it—not Slater—sells books online to purchasers, some of whom may be in California. He is not engaging in any infringing activity by selling books in California; Slater is receiving royalties from an independent contractor under a mere licensing agreement which is non-exclusive. Even the existence of an exclusive license agreement does not establish minimum contacts for purposes of personal jurisdiction without additional terms and conditions beyond the payment of royalties, such as granting both parties the right to litigate infringement cases or granting the licensor the right to exercise control over the licensee’s sales or marketing activities. Breckenridge Pharm., Inc. v. Metabolite Labs, Inc., 444 F. 3d 1356 (2006). Blurb is not Slater’s agent as he exercises no control over Blurb or its marketing policies; therefore its activities in California should not be imputed to Slater for jurisdictional purposes. Armstrong v. Virgin Records, Ltd., 91 F. Supp. 2d 628 (2000).
DID EVERYONE FORGET ABOUT INDONESIAN COPYRIGHT LAW?
The District Court in effect accepted jurisdiction and granted the motion to dismiss so let us move on to substantive law, which is more important to this discussion. First, let us dispose of Indonesian copyright law. Paragraph 2 of Article 1 states: Author shall mean a person or several persons jointly upon whose inspiration a Work is produced, based on the intellectual ability, imagination, dexterity, skill or expertise manifested in a distinct form and is of a personal nature. The Indonesian Copyright Act does not define ‘person,’ but to start with it cannot include a legal entity in view of the wording of Paragraph 11, which defines a Producer of a Phonogram as a person or legal corporate body. Paragraph 14, which uses the words ‘his/her works’ in reference to the rights obtained from a ‘Copyright Holder’ by a licensee, supports the interpretation that the term ‘person’ should be restricted to ‘individuals.’ Stronger support is found in Paragraph 3 of Article 10, which refers to ‘any person who is not a citizen of Indonesia,’ with respect to permission concerning certain Works owned by the Indonesian Government. Sorry, Naruto, but it looks like your homeland will not treat you as an author.
UK COPYRIGHT LAW
Next, let us consider UK copyright law, which provided under the 1956 Copyright Act that the author of a photograph was the person who at the time the photograph was taken ‘owned the material on which it was taken’ but unfortunately for Slater this is no longer UK law.
The Copyright, Designs and Patents Act 1988 (the ‘CDPA’) states in section 9 (1): In this Part ‘author’, in relation to a work, means the person who creates it. ‘Person’ is not defined, but common definitions in a business or legal context generally include an individual, body corporate, partnership, etc. The last support for the position that animals may not be authors (and thus not copyright owners) under UK copyright law is found in Section 154 (1), which provides copyright protection for qualified authors (e.g., a British citizen, an individual domiciled or resident in the UK, or a body corporate, etc.).
Fact sheet P-01: UK Copyright Law of the UK Copyright Service states that ‘To qualify, a work should be regarded as original, and exhibit a degree of labour, skill or judgment’. Unlike the US, creativity is not required for originality in the UK. The IPO has indicated that under UK law animals cannot own copyrights, but left open the ownership question as to the photographer in the case of animal selfies.
IS NARUTO’s SELFIE A COMPUTER GENERATED WORK UNDER UK COPYRIGHT LAW?
It has been suggested that a photographer may be able to claim UK copyright of animal selfies based on computer-generated art (depending on the circumstances), which would require the use of a digital camera rather than an old-fashioned camera with a roll of film. Before considering this possibility we must first review the rules governing the copyright of photographs under UK copyright law.
Copyright exists for original artistic works under the CDPA, which in section 4 (1) (a) defines ‘artistic work’ as ‘a graphic work, photograph, sculpture or collage irrespective of artistic quality.’ CDPA section 4 (2) states: ‘Photograph’ means a ‘recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film.’
Section 9 (3) of the CDPA states: In the case of literary, dramatic, musical or artistic work which is computer generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. Section 178 defines computer-generated work as work generated by a computer in circumstances such that there is no human author of it, thus by implication excluding computer-aided work. Although Sections 9 (3) and 178 of the CDPA refer to ‘computer-generated’ works, it is the software, not the computer, which creates the works. Thus, undue emphasis should not be placed on the word ‘computer.’ Digital cameras, like printers and scanners, are in effect special-purpose computers, which have internally stored firmware, similar to software in a computer. It should not be that difficult to justify pictures taken by a digital camera as being computer-generated, with the author (under UK law) being the person who makes the arrangements necessary for the creation of the work. Possibly helpful to Slater, depending on his involvement, but not Naruto.
WATCH OUT WHAT YOU ASK FOR
Before we leave the topic of photographs taken by digital cameras qualifying for copyright protection as computer-generated work, it is important to note that the copyright period is only 50 years, compared to the life of the author plus 70 years for work qualifying as a ‘photograph’ under CDPA section 4 (2). This difference might cause classification problems in some situations, depending on the circumstances under which the work was created, as to whether a particular work would be entitled to protection for the life of the author plus 70 years or only 50 years.
US COPYRIGHT LAW
The discussion must necessarily move on to US copyright law, which is the focus of Naruto v. Slater and the endless flow of articles that has resulted. In order for a work to be protected under US copyright law, it must be an original creation of an author and be fixed in a tangible medium of expression (such as a computer file or written on a piece of paper, for which a paper napkin in a bar or restaurant will do). Not much is required as far as originality is concerned, meaning merely that the material is original as to the author and has not been copied from someone else’s work. Creativity (even if mediocre and lacking in quality) is sometimes also mentioned as a requirement in the US, as well as some intellectual endeavour, which is where animals seem to fail the requirements of being authors.
In Hein v. Harris 175 F. 875 (C.C.S.D.N.Y. 1910), aff’d 183 Fed. 107 (2d Cir. 1923), a copyright infringement case in which Arab Love Song was compared to I Think I Hear a Woodpecker, Judge Learned Hand stated: ‘The lack of originality and musical merit in both songs is of no consequence. While the public taste continues to give pecuniary value to a composition of no artistic excellence, the court must continue to recognize the value so created’.
A BRIEF INTERRUPTION ON PETA’s APPEAL
In its appeal to the Ninth Circuit, Plaintiffs complain that the district court departed from the well-established norm that every photograph is entitled to copyright protection, citing Ets-Hokin v. Skyy Spirits, Inc, 225 F.3d 1068 (9th Cir. 2000), and that all photographs are sufficiently original by their nature to merit copyright protection. Los Angeles News Service v. Tullo, 973 F.2d 791 (9th Cir. 1992). The focus of these statements is whether photographs meet the low threshold of originality for copyright protection. These statements, standing alone are not the law. For copyright protection, a photograph must have an author. Upon climbing to the top of a steep rocky mountain, a hiker needing to catch his or her breath may remove a backpack and place a camera on the ground or upon a rock. If a gust of wind sweeps up the camera and it bounces down the mountainside, snapping pictures each time its button hits a rock at just the right angle, the resulting photographs may be original but will have no author and therefore no copyright protection, although someone—not mentioning any names—might come forward and claim the wind as the author.
WHO OR WHAT IS AN AUTHOR?
The term ‘author’ is not defined in the US copyright statute, but the opinion of the US Copyright Office is that an author must be a human, as discussed further below. Under UK copyright law the ‘author’ is the ‘person’ who creates the work, subject to special rules for motion pictures, sound recordings, etc. As previously stated, ‘person’ is not defined in the UK statute either, but the ordinary meaning of persons in a business or legal context often includes individuals, corporations and other entities, but not animals. Under both US and UK law, any work that does not have an author is considered by default to be in the public domain.
THE ALMIGHTY COMPENDIUM OF THE US COPYRIGHT OFFICE
The US Copyright Office sets forth several general rules in Chapter 300 of its Compendium regarding copyrightable authorship and what can be registered, or more accurately, what it is willing to register. Sec. 306 states an overall rule that the US Copyright Office will register an original work of authorship only if created by a human being. It also states that copyright law only protects ‘the fruits of intellectual labour’ that ‘are founded in the creative powers of the mind’, citing Trade-Mark Cases, 111 U.S. 53, 58 (1884). Sec. 313.2 states that the ‘Office will not register works produced by nature, animals or plants’, including (under the examples) a photograph taken by a monkey or a mural painted by an elephant. This article will return to elephant paintings later. Notwithstanding these pronouncements, this does not mean that a photograph taken by an animal may not be copyrighted by a human being under any circumstances whatsoever; see further discussion below, citing Compendium Sec. 802.5(C).
In discussing visual arts, which include photographs and paintings, Sec. 906 states that works not created by a human being are not eligible for copyright protection, a refrain inserted repeatedly throughout the Compendium. Perhaps the US Copyright Office believes in the old adage that if you repeat something enough times everyone will believe it without question. The Compendium is not a law; it contains the rules for registering copyrights, based on the interpretation of the copyright statute by the US copyright Office and court cases cited in the Compendium. Although the courts give deference to the regulations and opinions of the US Copyright office, the question is still before the courts as PETA has appealed its case to the Ninth Circuit, and may not stop there. However, until former US Supreme Court Justice Scalia is replaced we can expect to see more tied (four to four) decisions. PETA might want to look into the background of any potential Supreme Court nominee and support someone who is an animal rights enthusiast, or who at least owns a pet (preferably something larger than a goldfish).
US COPYRIGHT OFFICE RATES CHIMPANZEE VIDEOS LOWER THAN ‘B’ MOVIES
Sec. 807(C) states that a motion picture must contain creative human authorship, and that a chimpanzee is not an author where it picks up a video camera, inadvertently turns it on and records images. Note the word ‘inadvertently.’ Chimpanzee videos (where a chimpanzee is directed to use a video camera instead of picking it up inadvertently) might be copyrighted by someone other than the animal, such as a human who participated sufficiently in the work’s creation so as to qualify as its author, provided that the work meets the originality and creative requirements for copyright.
Assuming for argument that Naruto is the author of his selfies, could Slater be considered as a joint author? A joint work is one created by two or more co-authors with the intention that their contributions be merged into inseparable parts of a unitary whole (US) or that the contribution of each author is not distinct (UK). Each one must contribute copyrightable subject matter to the work; one who merely contributes ideas is not a joint author. The selfie cannot be considered as a joint work, making the photographer a co-author, because Slater, unlike Naruto, participated in none of the actions that resulted in the taking of the selfie. In addition, there was no intention between them to be co-authors.
PAINTINGS OF HARD WORKING CHIMPANZEE, HORSE and ELEPHANT DUMPED INTO PUBLIC DOMAIN
In contrast to selfies, there are numerous examples of paintings created by animals: Congo, a chimpanzee; Kissu, the horse; and Ruby, the elephant. These may involve more effort than merely swishing a brush at a canvass, but the results are generally considered to be in the public domain. The owner of such an animal might be able to claim authorship if he or she sufficiently directed the actions of the animal in creating a painting. For example, the creative input of the animal’s owner might include selecting the colours of paint, changing the position of a canvass during the creation of the painting, and directing the animal to start, stop and resume painting until the owner deems the project finished. On the other hand, disregarding the ‘human being’ requirement, an elephant may be able to provide creative input in some cases. An example might be where six buckets of paint are set out near a canvass, each a different colour, with a separate brush in each bucket; without human prompting the elephant would pick up a brush from a bucket of its choosing, paint for awhile and then try another color until it decided to stop painting. It might even choose not to use all of the colours. If PETA’s theory is correct, the elephant in such cases would be an author and own the copyright. Contrast that scenario with some of the animals in elephant centres in Indonesia, where elephant creativity appears to be lacking as they paint the same picture over and over (suggesting training). Similar to leading a witness in a trial, the mahouts (trainers) apparently tug the ear of the elephant up, down or sideways, resulting in the elephant moving the paintbrush in a corresponding direction on the canvass.
COPYRIGHT BY USING LOAN-OUT COMPANIES HIRED TO PROVIDE ANIMALS TO PAINT
There is another possible way for an owner to claim authorship of artwork created by animals—the ‘work-made-for-hire’ doctrine. The ‘author’ is the owner of the copyright, unless it involves work-made-for-hire. A ‘work-made-for-hire’ is (1) a work made by an employee for his or her employer, or (2) a work (limited to nine specific categories, including contributions to a collective work, supplemental work or compilation) made by an independent contractor if the parties expressly agree in a written instrument signed in advance that the work shall be considered as a ‘work-made-for-hire’.
An animal cannot be an employee, even if owned by an individual, and is excluded by the use of the words ‘his or her employer’ in clause (1). That leaves the independent contractor route under clause (2), the wording of which is not specifically restricted to individuals. On the other hand, Sec. 802.5(C) of the Compendium states: ‘To be copyrightable, musical works, like all works of authorship, must be of human origin’. However, compare Urania Foundation v. Maaherra, 114 F.3d 955 (1997) in which the Ninth Circuit Court of Appeals stated that the copyright laws do not expressly require ‘human’ authorship, but that some element of human creativity must have occurred for a work to be copyrightable. The case involved copyright to a book allegedly authored by celestial beings and transcribed by mere mortals, a most appropriate case for the Ninth Circuit.
Actors often form wholly owned corporations (or limited liability companies) which act as loan-out companies to contract out their services to motion picture production companies. The loan-out company acts as an independent contractor in providing services to the production company, usually those of its sole owner. A client could be deemed to be the author of a painting under a work-for-hire contract with a loan-out company which used one of its employees to create the painting if the work fell within one of the nine work-for-hire categories.
There is no rule which states that the services provided by a loan-out company must be provided by its own ‘employees’, although such an assumption is made in the second example under Sec. 802.8(E) of the Compendium, discussed below, where the author is listed as an LLC with respect to musical works created as works made for hire. Art works are not one of the nine categories listed as a work for hire under clause (2); therefore, a painting—by an animal or a human—must fall under one of the nine specified categories to be a work for hire by an independent contractor. The most likely categories would be as a ‘contribution to a collective work’, a ‘supplementary work’, or a ‘compilation’. The use of loan-out companies for musical animals is discussed below.
PROBLEMS LOCATING ANIMALS’ HEIRS TO RECLAIM COPYRIGHTS FROM LICENSEES
Assuming that PETA is correct—that animals may be authors and owners of their selfies—there are additional issues which to date have been overlooked and require consideration. Copyright protection varies depending on the type of work and the country. For photographs, the period (in the US) is the life of the author plus 70 years or 95 years from publication for a ‘work-made-for-hire’. Unlike UK and EU laws, the US Copyright Act allows authors or certain heirs to reclaim their copyrights by terminating publishers’ or licensees’ rights after 35 years (56 years for pre-1978 works) from the date of a published work, but only if the works are not works-made-for-hire. When a copyright owning animal dies, how do you determine or locate its heirs. Inasmuch as an animal is incapable of executing a will, there will be no executor, so it will be necessary for an administrator to be appointed by a court. Searching for the heirs may require substantial travel at the expense of the estate, which may end up with peanuts. If the heirs are monkeys, who will complain about such results? Such tedious travel around the globe (possibly through forests and mosquito infested jungles) in search of the heirs would no doubt justify the estate in paying for first-class airfare and hotel accommodations for the administrator, as well as foot massages.
DO NOT FORGET AUTHORS’ MORAL RIGHTS – BLACK & WHITE PRINT OF NARUTO SELFIE IS A NO, NO
Wait! There is one more consideration if an animal is an author: ‘Droit moral’ or ‘moral rights’. These include several types of rights, but the only relevant one is the right to object to derogatory treatment of a copyrighted work (known as the ‘right of integrity’), which prevents certain changes to the author’s work without permission. Thus, the selfies of Naruto (if the author) cannot be altered without his permission in jurisdictions where ‘droit moral’ is in force, which might prohibit publication of his photos in black and white as well as other changes without the author’s permission. This brings to mind the unsuccessful 1980’s objections from film directors over the colourization of their old black-and-white films; the US Copyright Office ruled that the copyright owner of a black-and-white film had the legal right to colourize it, the colourization being a derivative work with a separate copyright. Naruto would have better protection in France where in 1988 a French court prohibited the premiere TV broadcast of a colourized version of John Huston’s Asphalt Jungle based on the right of integrity under the French doctrine of droit moral.
In Europe, it is generally not possible for authors to assign or even waive their moral rights, but contracts often require the author not to enforce these rights. There may also be a requirement for the author to ‘assert’ these moral rights before they can be enforced. In the United Kingdom, moral rights may be waived, but not assigned. No doubt, some well-intended group would step forward and be willing to assert, waive or assign an animal’s moral rights on its behalf when appropriate.
MONKEYS ARE NOT THE ONLY NON-HUMAN AUTHORS
Enough about animals and selfies, especially monkeys who are hogging the limelight. Missing from the endless discussion of monkeys as authors is the possibility that other living things such as trees may be authors. Why not? Just because humans share more DNA with monkeys than with trees is no reason to discriminate against trees and deny them authorship. This area of discussion must necessarily focus on the copyright of music rather than literary property, photographs or paintings.
FIRST – MUSIC COPYRIGHT FOR ANIMALS
The copyright of music involves more aspects than the copyright of photographs, although the same general principals apply: authorship, originality, fixation, etc. There are two separate categories for music: musical works and sound recordings. Musical works are usually divided into lyrics (words) and melody, each with its own copyright, although a melody may exist without words. There may be more than one author, as where one person writes the lyrics and another the melody, or both may be written by the same person. A separate copyright exists in the sound recording, although permission (generally in the form of a mechanical license) must be obtained from the owner or owners of the musical work to record it. The producer of the sound recording is usually treated as the author, although the Compendium has more to say about this.
Going back to originality, although only a bare minimum of creativity is necessary, there is a similarity between the requirements for literary and musical works. Ideas may not be copyrighted, only the expression of ideas when fixed in tangible form. Similar to words and short phrases, which are not subject to copyright, mere sounds (such as those of a banjo) or a few musical notes standing alone cannot be copyrighted; only the expression of sounds, as in a musical composition, may be copyrighted. Regarding creative expression, Sec. 803.5(B) states in part: ‘Short sound recordings may lack a sufficient amount of authorship to be copyrightable (just as words and short textual phrases are not copyrightable)’.
Sound recordings are ‘works that result from the fixation of a series of musical, spoken, or other sounds, but not including sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes or other phonorecords, in which they are embodied’. 17 U.S.C. § 101. A series of musical, spoken, or other sounds requires a temporal succession of sounds rather than a single sound expressed horizontally or simultaneous sounds expressed vertically, such as in a chord. Compendium, Sec. 803.1. This would disqualify certain basic sounds of animals or trees.
THE THAI ELEPHANT ORCHESTRA – MUSICAL COMPOSITIONS
Works that contain only a de minimis amount of original expression, such as a musical phrase of three notes or a sound recording consisting of a single tone, are not copyrightable. Compendium, Sec. 313.4(B). This is hardly the case with the Thai Elephant Orchestra in Lampang, Northern Thailand—a group of 14 Asian elephants. The elephants play on large gongs, drums, chimes, and metal and wooden marimba-like instruments, often using mallets of different sizes, and even large harmonicas. Elephants have a sense of rhythm and generally improvise as they play what they want; these seem to have minimal supervision by caretakers or trainers. You can watch a documentary about the Thai Elephant Orchestra, which includes performances, at [http://www.davesoldier.com/thaiorch.html]. It seems that most people who have heard the elephant orchestra consider their efforts to be music instead of noise, whether or not they like it. Justice Learned Hand (if he were alive) would no doubt reach the opposite conclusion if his opinion in Hein v. Harris is anything to go by—describing ‘rag-time’ as the lowest grade of the musical art.
JOINT AUTHORS OR NOT?
Joint works are works prepared by two or more authors with the intention at the time of creation that their contributions merge into inseparable or interdependent parts of a unitary whole. If the authors did not intend for their separate elements to be merged into an interdependent whole, the separate copyrightable elements should be registered as separate works. Compendium, Sec. 801.6. Absent such intent, the elephants cannot qualify as joint authors, but they might qualify as individual authors of their relative contributions—works. Compendium Sec. 309 requires that the work contain at least a minimum amount of creative authorship that is original to the author. In this case, the contribution of each elephant must be tested separately. Some, or maybe none of them, might meet this requirement. However, the number of elephants may make the creative contribution of each one minimal and in any event difficult to measure. It is better to leave it at that and move on to sound recordings. The musical composition of the Thai Elephant Orchestra is a collaborative work, which overall, together with the creative input of the producer, should satisfy the copyright requirements for a sound recording (with the producer being its author).
We will skip music ownership (which may be divided among the composer of the lyrics and/or the melody, sheet music publishers, record labels, and performing rights) and concentrate on authorship. It should be noted that transcribing or fixing a musical work in and of itself does not constitute authorship. Compendium, Sec 802.8(B). This statement seems to conflict with the Ninth Circuit’s decision in Urania Foundation v. Maaherra (discussed above), which involved copyright to a book allegedly authored by celestial beings and transcribed by mere mortals.
MUSICAL COMPOSITIONS AND SOUND RECORDINGS
There may be more than one author for a musical composition or sound recording. However, in the case of a sound recording the producer is usually treated as the author and the record label as the owner. Although it is possible for band members to be joint owners of a sound recording, usually they are under work-for-hire contracts or hired as employees, and are not joint authors. Other possible joint authors include (1) session musicians, who drop in (or are invited) to join a music session; (2) guest musicians, who may be invited up to the stage at a live performance; and (3) soloists who make a distinctive contribution to a performance. In the first two situations, session or guest musicians would have to make an important contribution to the session or performance to become joint authors and/or be entitled to a share of profits. Absent an intention of the parties to be joint authors, a share of profits still may be the best result that can be obtained. What if an elephant dropped in uninvited to a session of the Thai Elephant Orchestra and contributed a wonderful drum solo—royalties but not authorship?
Non-featured musicians (such as background singers) are not potential joint authors, as they generally do not make substantial creative contributions and the intent to be joint authors is missing; also, they usually work as employees. Under UK copyright law, the author of a sound recording is the producer, but the copyright owner is usually the person (often a record company) who pays for the recording. Copyright, Designs and Patents Act 1988, Sec. 9 (2)(aa).
Compendium Section 803.3 states that there are two types of sound recording authorship—performance authorship and production authorship. Either one will require a minimum amount of creative authorship. Generally, both the performer and the producer of a sound recording of a musical performance or spoken word performance contribute copyrightable authorship to the sound recording. In some cases, however, the main or sole contribution may be production authorship (as in a recording of bird songs, where there is no human performance) or the main contribution may be performance authorship (as in a recorded performance where the only production involved is to push the “record” button). Examples of production authorship in a sound recording include capturing and manipulating sounds, and compiling and editing those sounds to make a final recording. On the other hand, an executive producer (limited to the financing and administration of a recording, rather than being creativly involved in the recording) is not an author under US copyright law.
Now that the basic copyright rules for musical compositions and sound recordings have been outlined, their application will be discussed in relation to the creation and authorship of works by animals and then trees. Yes, trees!
ANIMALS & MUSICAL COMPOSITIONS
The Compendium states that ‘to be copyrightable, musical works, like all works of authorship, must be of human origin’ and that ‘a musical work created solely by an animal would not be registerable, such as a bird song or whale song’. Sec 802.5(C). Did you read the second statement too quickly and overlook the word solely? Animal songs can be copyrighted by someone other than the animal, such as a human who participated sufficiently in the work’s creation so as to qualify as its author, provided the work meets the originality and creative requirements for copyright.
Notwithstanding the foregoing, the ‘author’ need not always be a human as an entity such as a corporation or LLC may be registered as the author of a work under one of the work-made-for-hire exceptions. Because animals cannot be employees, the second exception (discussed above) would have to be availed of—a work made by an independent contractor (using animals to create the musical sounds), if the parties agree in writing that the work will be considered as a ‘work-made-for-hire’.
Since musical works are not one of the nine categories listed in the work-made-for-hire definition, a musical work must fall under one of those categories to be considered a work-made-for-hire; the most likely categories would be as a ‘contribution to a collective work’, a ‘supplementary work’, or a ‘compilation’. Compendium, Sec 802.8(E). The second example allows an applicant to identify an LLC as the author of music in the case of a work that is made for hire … and states that it appears that the company employs people to compose the music. However, there is no specific requirement in the Compendium that the independent contractor use employees or humans. Obviously this will not work with wild animals. See the discussion above concerning possible use of animals by loan-out companies to create paintings. Therefore, it would seem that a loan-out company, which own or rent animals, could enter into a contract to provide services as an independent contractor to an individual who as a result, would be the author of any music or paintings made by the loaned-out animals. The only obstacle, other than possible complaints from animal rights groups, is that the commissioned work would have to fit into one of the nine categories that constitute works-made-for hire, no problem for a creative lawyer.
TREES & MUSICAL COMPOSITIONS
If PETA is correct that animals may be authors for copyright purposes, why should not other living things—such as trees—also qualify as authors in appropriate situations? Trees (as well as animals) have
been protected by various laws (e.g., the Forestry Reserve Act of 1897) over the years, so there is some basis that trees have rights. Supreme Court Justice William O. Douglas, dissenting in Sierra Club v. Morton, 405 U.S. 729 (1972), noted that inanimate objects are sometimes parties in litigation and asserted that natural resources, such as trees, ought to have standing to sue for their own protection. It does not make them humans, but trees do share some DNA with humans, although to a lesser extent than animals. Unlike monkeys, trees do not have brains but are capable of movement; they move towards light in response to phototropism. With respect to trees moving, consider Monty Python’s The Walking Tree of Dahomey, (a sketch with David Attenborough) in which the legendary walking tree of Dahomey—Quercus Nicholas Parsonus—walked over two thousand miles on its way to Cape Town. Proof of this feat is lacking unfortunately as Attenborough informs us that they have just missed the famous walking tree. Let us now turn to copyright law as it applies to trees.
The obvious category for trees is musical compositions. Because trees themselves are incapable of reducing their musical sounds to paper—ironic since paper comes from trees—the sounds can be fixed in permanent form only by capturing them in sound recordings. One might assume that musical compositions are usually first created by writing the lyrics and melody on a piece of paper or in a computer file, followed by a sound recording some time later. However, these steps can occur simultaneously, as where the song writer makes a sound recording the first time he or she performs the musical work (without having previously written it down). In this case, separate copyrights will result simultaneously, one or two for the musical composition—depending on whether or not the melody and lyrics are written by more than one person—and another for the sound recording. This would be the only method of fixation where a tree is the author, because there is no way to reduce the musical sounds of a tree to a fixed form prior to making a sound recording. The fact that a tree is incapable of independently creating a copyrighted musical composition “prior” to its recording is not relevant to its ultimate copyright; the recording simultaneously creates separate copyrights for the melody and another for the sound recording. There is no requirement that a sound recording be of an existing copyrighted musical composition. For example, in the case of a new recording of music in the public domain, only one work would be copyrighted—the new sound recording, not the underlying musical composition.
Whether or not the sounds of trees should be considered music or merely sound is not determinative because performance authorship includes ‘playing an instrument, singing, or speaking, or creating other sounds which are captured and fixed in a sound recording’. Compendium, Sec. 803.3(A). However, Sec. 802.5(B) states that to be copyrightable, ‘a musical work must contain a sufficient amount of creative expression’. Sec. 313.4(C) states: ‘short musical phrases consisting of only a few musical notes standing alone are not copyrightable’, and gives clock chimes as an example. Clock chimes repeat the same sound each time, whereas members of the Thai Elephant Orchestra (in contrast) produce a series of different musical sounds each time they move their trunks and hit a row of chimes.
Trees make sounds: branches creak or break off; snow or ice may fall off branches; leaves rustle and branches sway in the wind; branches may make a noise returning to position as squirrels jump from one branch to the next; leaves or pine cones may fall to the ground or on a nearby tin roof. A whistling sound may occur as the wind blows through the branches, leaves, or holes in the tree. Although one can argue that some of these actions are the result of the wind, it must be remembered that the tree is a living thing and is reacting to the wind. At best, the wind might be a co-author, but cannot manifest its consent in writing and therefore must be disregarded, leaving (no pun intended) the tree as sole author of the sounds. This avoids the problem of locating the wind under UK copyright law, where all joint owners of copyrighted material must consent to its licensing.
Although most of these sounds may not rise to the level of musical compositions, sound recordings are not limited to music and may consist of other sounds. However, since some degree of creativity (though not artistic merit) is required it is probably best to disregard all tree sounds other than musical ones. Possible musical compositions might consist of a tree dropping its pine cones in a syncopated manner on a metal container resting at its base (similar to a drum solo), or a whistling melody as a tree bends its branches to allow the wind to pass. If this is a stretch of the imagination, such inspiration must have come from the Ninth Circuit. Continuing, we can disregard any birds singing in the background, as they are not making a substantial creative contribution to the work, similar to background singers who appear with a lead singer, although in their case this contingency is usually removed by contract.
Speaking or narration might be added to the sound recording to make it more interesting, with the result that the writer or narrator could become a joint author of a tree if the obstacle of joint authorship intention could be overcome. However, since there can be no such intent, at best they would be individual authors of their relative contributions.
PETA or some other organization could be appointed to collect the royalties for the trees in question, which might be a nice fit as monkeys often live in trees or at least swing from them. On the other hand, a conflict of interest might arise in representing both trees and monkeys. There could also be a conflict of interest for lawyers who provide legal representation for a tree and a human joint author. Lawyers should decide this question for themselves, as referral of the question to their state bar association might produce an unwanted response. Lawyers who want to expand their practice should probably limit representation to animals and not trees.
The District Court dismissed Naruto’s case on January 29, 2016 for lack of standing; however, PETA filed an appeal on behalf of Naruto to the Ninth Circuit on March 20, 2016. The lower court did not rule on Slater’s possible copyright ownership, or whether the selfie was in the public domain. They say that location is everything; the Ninth Circuit is the place to be if you are seeking a novel interpretation of copyright law, where going bananas and tossing copyright law on its head is not unheard of, if you remember Garcia v. Google (9th Cir. 2015). The odds may be better with the right three-judge panel if PETA can avoid a rehearing (en banc) by the full Court. If the case is decided against PETA (on behalf of Naruto), there may still be an interesting dissenting opinion or two. Then it’s probably off to see the Wizard—sorry—the US Supreme Court. It was recently reported that Dr. Antje Engelhardt has dropped out as one of Naruto’s Next Friends, which in hindsight becomes apparent from reading the appeal filed earlier this year in which the only Next Friend listed is PETA. This adds a new aspect to the case as a party necessary for standing in the district court is not participating in the appeal. It has been questioned whether PETA has standing as a sole Next Friend because, unlike Dr. Engelhardt (who it is alleged has studied Naruto since his birth), PETA did not allege any relationship with Naruto.
If you are not convinced that trees, as well as monkeys and other animals should be entitled to copyright protection as authors, I hope the theories discussed above have made your day more interesting than your usual reading. Anyone who considers these ideas frivolous must consider where we started—in the Ninth Circuit with Naruto v. Slater. On the other hand, you might be able to find some clients willing to try new things. Why not be the first to start a new trend. If not trees as clients, you might set up loan-out companies for clients who wish to use animals to paint or sing. The purchase and maintenance of an elephant by a client would be quite expensive, so attorneys might want to bone up on how to write a short-term lease agreement for a loan-out company to rent an elephant to a client, just in case. You will obviously want to include elephant insurance coverage, which may not be that difficult to obtain as a major insurance company is currently advertising on TV that it will insure just about anything.
What About My Royalties?