Monkey Business at the Ninth Circuit
The Monkey Selfie Strikes Back

I previously blogged about my favorite copyright dispute of all time, the infamous Monkey Selfie, here and here.  As  a quick refresher, British photographer David Slater traveled to Indonesia to photograph macaque monkeys.  He left his camera unattended on the jungle floor, where a monkey grabbed it and took a series of handsome selfies, including this one.  Slater returned to the U.K., where he asserted copyright ownership in the image, including by sending a cease and desist letter to Wikimedia for including the image in its database of public domain images.  Under U.S. law, only human beings can be authors of copyrightable subject matter.  Accordingly, Wikimedia gave Slater the stiff-arm and refused to take the image down.  Although Slater made noise about filing suit, he never did, and the controversy died down.

Enter PETA – People for the Ethical Treatment of Animals.  Dubbing the monkey “Naruto,” PETA sued Slater and others, alleging that the defendants infringed Naruto’s copyright by reproducing, distributing and displaying the selfie.  The defendants moved to dismiss for lack of standing under Article III and the Copyright Act.  The court granted the motion, finding that Congress did not grant statutory standing to animals under the Copyright Act.

The Copyright Act does not define the terms “work of authorship” or “author.”  PETA argued that anyone who creates a work of authorship – even an animal – has Copyright Act standing. Macaque monkeys, PETA reasoned, are “highly intelligent, capable of advanced reasoning and learning from experience”; have “stereoscopic color vision with depth perception”; and are “vision dominant.”  The court noted, however, that the Copyright Act “makes no mention of animals anywhere,” and the Supreme Court and Ninth Circuit have referred to “persons” and “human beings” in analyzing authorship claims.  Moreover, the Copyright Office will not register claims of authorship by animals.  Indeed, the Compendium of U.S. Copyright Office Practices states that to “qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.”  Compendium 313.2  Indeed, the Compendium specifically cites as an example of uncopyrightable authorship “a photograph taken by a monkey.”

The court thus had little difficulty concluding that Naruto lacks standing to assert a claim of authorship under the Copyright Act.  Naruto is not done monkeying around, however.  An appeal has been filed with the Ninth Circuit, and Naruto’s opening brief is scheduled to be filed on June 28, 2016.  Following the appeal is sure to be more fun than a barrel of monkeys.

You can read the District Court opinion


Take a Deep Breath
Ninth Circuit Affirms Yoga Sequence Uncopyrightable

This morning, the Ninth Circuit Court of Appeals issued its ruling in the Bikram yoga case, affirming that a yoga sequence is an uncopyrightable system or method. The plaintiff had obtained a copyright registration for a book in which the sequence was published, but that registration could not extend to the sequence itself because the sequence was a “system” or “method” of working the body’s muscles, ligaments and tendons to achieve optimal health. Accordingly, the sequence was not an expressive work and also could not be protected as a compilation or choreographic work.

The plaintiff in this case, Bikram Choudhury, has gained notoriety for his aggressive efforts at enforcing his copyright against other yoga instructors. And the notion of obtaining copyright protection for yoga poses seems understandably silly given that yoga has been around for thousands of years. It puts the Happy Birthday dispute – over a work authored in 1893 – into perspective!

Sing It!
Judge Rules Warner-Chappell Does Not Own Copyright in “Happy Birthday” Lyrics

Yesterday a federal judge ruled that Warner-Chappell does not own copyright in the lyrics to the song “Happy Birthday.” The lawsuit addressed only the lyrics, as the parties agreed that the music passed into the public domain long ago. The opinion is a beast, weighing in at a very dense 43 pages, and leaves the reader hanging until the very last minute.

The court addresses several issues, concluding (1) there is a genuine issue of material fact as to the authorship of the “Happy Birthday” lyrics; (2) there is a genuine issue of material fact as to whether a divestive publication of the “Happy Birthday” lyrics occurred (specifically, whether the lyrics were the subject of an authorized “general publication” under the Copyright Act of 1909 that divested the lyrics of common-law copyright protection); (3) there is a genuine issue of material fact as to whether the purported author abandoned her copyright in the lyrics; and, finally, (4) there is insufficient evidence to establish that the purported author ever transferred her rights in the lyrics to Warner-Chappell’s predecessor-in-interest.

It is important to note that, contrary to various assertions by commentators online, that the opinion does not hold that the lyrics are in the public domain. This is perhaps a wonky copyright distinction, but one that is substantively very important. The ruling holds only that Warner-Chappell does not own copyright in the lyrics. It is at least theoretically possible that some other party could come forward and establish ownership. This seems fairly unlikely, given that the song was authored in 1893 and solid evidence regarding chain of title has faded into the mists of time.

The resulting uncertainty highlights the problem of “orphan works” – works as to which it is very difficult, if not impossible, to establish ownership. The orphan works problem plagues many would-be users of works, who cannot identify or locate the owners of works they may wish to license. There have been many calls for a legislative fix of the “orphan works” problem, and we can only hope that Congress takes it up as part of the broader need for copyright reform.

In the meantime, happy birthday to everyone!

Flo & Eddie 2, SiriusXM 1
Florida Grants Summary Judgment to Sirius on pre-1972 sound recordings

The Southern District of Florida has granted summary judgment to SiriusXM on Flo & Eddie’s claims that Sirius infringed Flo & Eddie’s public performance rights under Florida state law by streaming pre-1972 sound recordings. Although Flo & Eddie have prevailed in the trial courts in the Southern District of New York and Central District of California on nearly identical claims, the court found that “Florida is different” because, unlike California and New York, the state has no statutory or decisional law recognizing public performance rights in pre-1972 sound recordings. The New York case is currently on interlocutory appeal to the Second Circuit on the merits, whereas the California case is likewise on appeal, but on the issue of the court’s grant of class certification following a summary judgment ruling in favor of Flo & Eddie. Flo & Eddie will no doubt appeal the Florida ruling to the Eleventh Circuit.

From “Happy Together” to “Eve of Destruction”
Turtles Seek to Upend Streaming Business Models for Pre-1972 Sound Recordings

On Friday I had the privilege of speaking at the AIPLA Spring Meeting in Los Angeles on the subject of pre-1972 sound recordings and the current series of lawsuits brought by the successors of the Turtles against Sirius XM regarding royalties over pre-1972 sound recordings.  Copyright law in the United States is almost exclusively governed by the federal Copyright Act, which preempts equivalent state laws.   As originally drafted, however, federal copyright law did not extend copyright protection to sound recordings, leaving those works to be regulated by the states.  Congress amended the copyright law in 1972 to add federal protection for sound recordings, but it granted this protection on a prospective basis only.  Sound recordings fixed before February 15, 1972 thus remain subject to state law. A series of lawsuits brought by Flo & Eddie, Inc. (“Flo & Eddie”), the entity that owns the copyrights for sound recordings created by the 1960s rock group the Turtles, is upending rules thought long established regarding performance rights of pre-1972 sound recordings under state law. Continue reading »

Pennies Not From Heaven
Aereo settles broadcasters’ claims in bankruptcy

Aereo Inc. has reached a proposed settlement with the broadcasters that have sued it for infringing their copyrighted works.  The settlement would result in payment of $950,000 to the broadcasters in satisfaction of their claims seeking over $99 million – amounting to less than a penny on the dollar.

This development follows lengthy legal proceedings that saw the dispute go all the way to the Supreme Court on the issue whether Aereo was publicly performing the plaintiffs’ television shows, originally broadcast over the air for free, by streaming them to subscribers over the Internet.  Section 106 of the Copyright Act reserves to the copyright owner six exclusive rights, including the right to publicly perform literary, musical, dramatic and motion picture works.  In the so-called “Transmit Clause,” the statute provides that “to perform or display a work ‘publicly’ means … To transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”  17 U.S.C. § 101.  The Transmit Clause was added to the Copyright Act when it was amended in 1976 as a result of two Supreme Court cases:  Fortnightly Corp. v. United Artists Television, Inc. and Teleprompter Corp. v. Columbia Broadcasting System, Inc.  In those cases, the Court had held that community cable systems that retransmitted free, over-the-air broadcast signals did not “perform” the copyrighted works in the broadcasts and did not infringe the copyright owners’ public performance rights.  Congress added the Transmit Clause to the 1976 Act to overturn these decisions. Continue reading »