Monkeying Around in Copyright Law

A brief refresher on copyright protection and fair use

by Tyler A. Eathington, Quinn, Johnston, Henderson, Pretorius & Cerulo
Macaca nigra self-portrait
Naruto’s “selfie” went viral in 2011 after she picked up photographer David Slater's camera and photographed herself with it. Wikimedia Commons

If you haven’t heard the story of Naruto—the animal at the center of a Ninth Circuit Court of Appeals case—let me provide a little background. Naruto is a monkey who lives on an Indonesian habitat. In 2011, a photographer was taking pictures of the habitat when Naruto got ahold of the camera. Naruto then proceeded to take an immaculate “selfie” which went viral. The photographer subsequently profited from the photograph in several different ways, resulting in PETA bringing a lawsuit against the photographer.

PETA claimed the photographer infringed on Naruto’s rights under the Copyright Act of 1976. The ensuing court battle came to an end in 2018 when the Ninth Circuit Court of Appeals ruled the monkey did not have statutory standing to bring a copyright infringement claim because Naruto was not a human. While Naruto’s case is extremely unique, providing little purpose or applicability in copyright law, it is a good reminder that every now and again we could all use a brief refresher.

What is Copyright?
Copyright protects the expressive and aesthetic aspects of a work of art, writing, performance, etc. Another way to describe copyright is that it protects literary and artistic expression. It is different from trademarks or patents because a copyright protects only the work’s appearance or expression, while patents protect inventions and trademarks protect product names.

Benefits of Registration
While an individual does not need to register with the United States Copyright Office to be considered a copyright owner, there are significant benefits to filing. The greatest benefit is that a registered copyright comes with a presumption of validity, meaning the registered owner does not have to prove his or her copyright. A copyright owner, registered or unregistered, holds the following exclusive rights under the Copyright Act:

  • To reproduce the copyrighted work in copies or phono-records;
  • To prepare derivative works based on the copyrighted work;
  • To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership or by rental, lease or lending;
  • In the case of literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  • In the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  • In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Infringement Claims
When an individual other than the copyright owner infringes on the above exclusive rights, the copyright owner can bring a copyright infringement claim. There are several exceptions to the above exclusive rights of a copyright owner.

First, a copyright typically only lasts for the owner’s lifetime, plus 70 years. Second, another individual may claim they are using the copyrighted work for what is called “fair use.” Fair use allows individuals other than the copyright owner to use a copyrighted work for purposes such as education, research, news, criticism, etc., without infringing on the copyright owner’s rights. Typically, courts will look at how the copyrighted work is being used. Are nonowners profiting without proper reimbursement to the copyright owner? Are the nonowners giving proper attribution to the copyright owner?

While the Copyright Act of 1976 fails to extend to monkeys, it does offer a number of protections for artists who may not realize they have avenues for recourse against infringers. Even if an artist has not registered with the U.S. Copyright Office, he or she should still seek the advice of an attorney experienced in copyright law whenever they feel their rights have been infringed upon. In addition, if an artist wishes to properly register their work with the U.S. Copyright Office, they should also seek the advice of a copyright attorney. PM

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