US Federal Court of Appeal finally denied the rights of authors to animals
On April 23, the 3-year-old epic ended with an attempt to prove in US federal courts that animals, in particular monkeys, could be authors of works and therefore have the right to file a lawsuit about copyright infringement under the Copyright Act (US Copyright Act) .
I.
Initially, on January 28, 2016, the Federal District Court of the Northern District of California rejected the lawsuit of PETA animal rights NGOs, who went to court on behalf of the Naruto macaque against photographer David John Slater.
The photographer, in the opinion of zoodefenders, having allowed the monkey to take several pictures of herself (selfie) on her own, did not have the right to usurp the authorship and sell the rights to use the pictures.
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The court of first instance, as expected, agreed with the defendant: the unambiguous text of the Copyright Act, the judicial interpretation of the requirements for authorship and the position of the US Copyright Office did not allow the court to discover the copyrights of animals. As for the animal defenders' argument about the incompatibility of this conclusion with the great interest of society in the art of animals, the court forwarded this argument to the President and Congress.
Courts do not make laws.
Ii.
The ensuing proceeding in the federal appeals court of the 9th district also raised the question of the competence of animal defenders to represent the interests of the monkey as the next friend (the representative of the disabled).
And after the conclusion of a settlement agreement between PETA and a photographer and an unsuccessful attempt by animal defenders to end the case in the second instance and cancel the decision of the lower court, the appellate court made the final decision .
Animal copyright
Although the issue of the right of animals to go to court with a claim for infringement of their copyright was considered by the court at the very end of the decision (this was subject to the logic of argumentation), I will consider it first and only it.
The Court of Appeal confirmed the correctness of the conclusion of the court of first instance that the Copyright Act (US Copyright Act) does not provide for the right of animals to file a claim for copyright protection.
For this, the first and second instances studied the text of the Law and the legal positions of precedents, the essence of which is that if Congress wanted to endow animals with copyrights, it would make it clear and unequivocal. And this means that animals do not have the right to judicial protection of copyright.
But, the question of belonging to a person of copyright on works created by animals, remains open .
For example, the US Copyright Office, the federal organization responsible for registering works of art in the United States, notes in its Compendium of US Copyright Office Practices that:
As mentioned above, the 2nd edition of the Compendium speaks of works “created exclusively (solely) by nature, animals,” etc. (in the next edition there is no mention solely).
And what if the product is not created exclusively by animals? For example, did a person turn on a camera, set it up, teach (train) an animal, and allow him to take a picture? The idea to create photos will be only in humans.
Interestingly, the Compendium allows similar reasoning.
In the same p. 313.2 it is also noted that
By analogy, you can try to formulate the following rule for the Compendium:
"The US Copyright Office will not register a work created by an animal that worked independently or arbitrarily, without any creative input or human intervention."
After all, if the animal and the mechanism are on the same level (the authors of the Compendium did so), as not being, as a general rule, the authors, then the exceptions regarding them should be the same.
But this is theoretical reasoning!
For the time being, Slater may not receive copyright protection in the United States against a monkey selfie. And that means that this may entail losses for people who have works created by animals and fall into the hands of organizations such as Wikimedia.
Are there legal instruments to protect the legitimate interests of individuals (including property), as in the Slater situation?
After all, if he had not found the time and money for a trip to Indonesia and the purchase of photographic equipment, the world could lose the opportunity to admire the funny face of a macaque! Yes, and the cause of "green" such pictures are more favorable than harm.
So, the options.
A. Image registration by trademark and service mark . A supporter of this option is Kirill Mitagin . From indicates that
B.
To produce a work made by animals for their own. Nobody will force you to prove the opposite, but the interest in the work can be reduced to zero (the drawing of an elephant and a similar drawing of a person have different values).
Theoretically, you can conduct a competent public relations campaign, stating one of the works, as an animal authorship, for example, who decided to emulate a person. That is how Slater could have done it.
AT.
Sell ​​a work created by animals, as a thing. Having printed, for example, photographs of “monkey selfies”, they can be sold to an amateur of such photos or have an exhibition with a paid entrance and a ban on photo and video.
G.
The work created by animals, to make an element of the work, but already the authorship of man. A picture drawn by an elephant, for example, can be photographed and sold the rights to a photograph by hiding the picture from the public.
I.
Initially, on January 28, 2016, the Federal District Court of the Northern District of California rejected the lawsuit of PETA animal rights NGOs, who went to court on behalf of the Naruto macaque against photographer David John Slater.
The photographer, in the opinion of zoodefenders, having allowed the monkey to take several pictures of herself (selfie) on her own, did not have the right to usurp the authorship and sell the rights to use the pictures.
')
The court of first instance, as expected, agreed with the defendant: the unambiguous text of the Copyright Act, the judicial interpretation of the requirements for authorship and the position of the US Copyright Office did not allow the court to discover the copyrights of animals. As for the animal defenders' argument about the incompatibility of this conclusion with the great interest of society in the art of animals, the court forwarded this argument to the President and Congress.
Courts do not make laws.
Ii.
The ensuing proceeding in the federal appeals court of the 9th district also raised the question of the competence of animal defenders to represent the interests of the monkey as the next friend (the representative of the disabled).
And after the conclusion of a settlement agreement between PETA and a photographer and an unsuccessful attempt by animal defenders to end the case in the second instance and cancel the decision of the lower court, the appellate court made the final decision .
Animal copyright
Although the issue of the right of animals to go to court with a claim for infringement of their copyright was considered by the court at the very end of the decision (this was subject to the logic of argumentation), I will consider it first and only it.
The Court of Appeal confirmed the correctness of the conclusion of the court of first instance that the Copyright Act (US Copyright Act) does not provide for the right of animals to file a claim for copyright protection.
For this, the first and second instances studied the text of the Law and the legal positions of precedents, the essence of which is that if Congress wanted to endow animals with copyrights, it would make it clear and unequivocal. And this means that animals do not have the right to judicial protection of copyright.
But, the question of belonging to a person of copyright on works created by animals, remains open .
For example, the US Copyright Office, the federal organization responsible for registering works of art in the United States, notes in its Compendium of US Copyright Office Practices that:
The copyright law only protects “the result of intellectual work”, which is “based on the creative power of the mind.” (Trade-Mark Cases, 100 US 82, 94 (1879)).The US Copyright Office also further clarified that it will not register works:
Since copyright law is limited to “the author’s original intellectual concepts,” the US Copyright Office will not register the application if it determines that the person did not create the work. (Burrow-Giles Lithographic Co. v. Sarony, 111 US 53, 58 (1884)), paragraph 306 of the Compendium
created by nature, animals or plants, divine or supernatural beings.The 2nd edition of the Compendium (1984) also indicated that
Examples: photo taken by a monkey; picture painted by an elephant and so on. (Clause 313.2 of the 3rd edition as amended from 12/22/2014 and 09/29/2017)
Works created solely by nature, plants or animals are not subject to copyright.But this, as regards the Compendium of Practice, which reflects the interpretation of laws and precedents by a state organ. At the same time, if we speak only of precedents, then, first of all, they testify about a person as the only possible author. But, in the case under review, the courts did not analyze any precedents that would allow one to speak of varying degrees of human involvement in the process of creating a copyright object.
As mentioned above, the 2nd edition of the Compendium speaks of works “created exclusively (solely) by nature, animals,” etc. (in the next edition there is no mention solely).
And what if the product is not created exclusively by animals? For example, did a person turn on a camera, set it up, teach (train) an animal, and allow him to take a picture? The idea to create photos will be only in humans.
Interestingly, the Compendium allows similar reasoning.
In the same p. 313.2 it is also noted that
Similarly, the US Copyright Office will not register a work created by a mechanism or as a result of a mechanical process that worked randomly or automatically without any creative input or human intervention.If a mechanism or a mechanical process (creating a work), under certain circumstances, may lead to the creation of a work protected by copyright belonging to a person, then what prevents to treat animals in the same way?
By analogy, you can try to formulate the following rule for the Compendium:
"The US Copyright Office will not register a work created by an animal that worked independently or arbitrarily, without any creative input or human intervention."
After all, if the animal and the mechanism are on the same level (the authors of the Compendium did so), as not being, as a general rule, the authors, then the exceptions regarding them should be the same.
But this is theoretical reasoning!
For the time being, Slater may not receive copyright protection in the United States against a monkey selfie. And that means that this may entail losses for people who have works created by animals and fall into the hands of organizations such as Wikimedia.
Are there legal instruments to protect the legitimate interests of individuals (including property), as in the Slater situation?
After all, if he had not found the time and money for a trip to Indonesia and the purchase of photographic equipment, the world could lose the opportunity to admire the funny face of a macaque! Yes, and the cause of "green" such pictures are more favorable than harm.
So, the options.
A. Image registration by trademark and service mark . A supporter of this option is Kirill Mitagin . From indicates that
even in the absence of copyright, such an image would be protected.If an image that is not copyrighted can really become a protected element of the trademark (the trademark itself) without any problems, then obviously this is the best solution. Of course, the registration process of the TK is long and expensive, and its owner will not be the author of the image anyway.
B.
To produce a work made by animals for their own. Nobody will force you to prove the opposite, but the interest in the work can be reduced to zero (the drawing of an elephant and a similar drawing of a person have different values).
Theoretically, you can conduct a competent public relations campaign, stating one of the works, as an animal authorship, for example, who decided to emulate a person. That is how Slater could have done it.
AT.
Sell ​​a work created by animals, as a thing. Having printed, for example, photographs of “monkey selfies”, they can be sold to an amateur of such photos or have an exhibition with a paid entrance and a ban on photo and video.
G.
The work created by animals, to make an element of the work, but already the authorship of man. A picture drawn by an elephant, for example, can be photographed and sold the rights to a photograph by hiding the picture from the public.
Source: https://habr.com/ru/post/356292/
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