So Easy a Monkey Can Do It

To the delight of copyright lawyers everywhere, yesterday the infamous Monkey Selfie debate of 2011 revived itself in the wake of a transparency report issued by Wikimedia revealing that the organization refused a request by photographer David Slater to remove the photo from Wikimedia Commons. Slater traveled to Indonesia in 2011 to photograph macaque monkeys. By Slater’s own account, a monkey grabbed one of his cameras and began snapping photos, including this one . Slater apparently licensed the image for distribution, and later discovered that it had been uploaded to the Wikimedia Commons database. He demanded that Wikimedia remove the image, and the organization refused on the ground that Slater did not create the image himself and therefore does not own copyright in it. Slater’s demand, and Wikimedia’s refusal, came to light when the organization issued its transparency report. Copyright Twitter feeds everywhere immediately lit up like a Christmas tree.

Under U.S. copyright law, the author of a work is the one who created it. In wonky copyright terms, it is the person who fixed an original expression in a tangible medium. Here, Slater has publicly admitted that he did not create the photograph; the monkey. The United States Copyright Office takes the position that only human beings can be “authors.” Animals need not apply. Accordingly, this gives rise to the somewhat unusual situation where there appears to be no author as a matter of law, and thus no copyright ownership.

Of course, U.S. copyright law generally does not apply extraterritorially, and the image in question was created in Indonesia. Although both countries are signatories to the Berne Convention, which requires member nations to give each others’ nationals equal treatment under copyright law, the question of who owns the copyright in the image in the first instance may be governed by Indonesian law.

Slater has reportedly consulted with a U.S. attorney, and is supposedly considering pursuing an infringement action.

Last Call: Orphan Works and Mass Digitization

The Copyright Office is now accepting further public comments on the issue of orphan works and mass digitization. The Office held public meetings earlier this month, which, by various accounts, were heated at times. Interested members of the public wishing to submit comments can find more information and the electronic submission form here. Comments are due by April 14, 2014.

2nd Circuit Finds the Beef – Reverses Summary Judgment Grant in YouTube

On April 5, the Second Circuit issued its highly anticipated opinion in Viacom v. YouTube, reversing the District Court’s grant of summary judgment and remanding for further proceedings.  Significantly, the opinion marks the first time that a court has drawn a meaningful, substantive distinction between actual and “red-flag” knowledge under the DMCA.  This sets it apart from earlier DMCA opinions, including that of the Ninth Circuit in UMG Recordings, Inc.  v. Shelter Capital (involving the Veoh videosharing service) and, notably, the lower court opinion in Viacom.  Practitioners and ISPs now have some judicial guidance as to how to construe their rights and responsibilities under the DMCA.

Ominously for YouTube, the Second Circuit held that a reasonable jury could find that, under DMCA Section 512(c), YouTube had actual knowledge or awareness of specific infringing activity on its website.  Moreover, the Second Circuit ruled that the District Court had incorrectly construed the DMCA’s control and benefit provisions in holding that the “right and ability to control” infringing activity required that the ISP have knowledge of specific, identifiable instances of infringement.  Finally, the court affirmed the District Court’s holding that three of YouTube’s software functions fell within the safe harbor for infringement occurring “by reason of user storage,” and remanded for further fact-finding with respect to a fourth software function.  Continue reading

Partial verdict in Oracle v. Google – The party’s not over

Today the jury issued a partial verdict in the Oracle v. Google copyright infringement lawsuit.  In that suit, Oracle accuses Google of infringing elements of its Java programming platform in developing its Android mobile software.  The jury found that Google infringed 37 Java API packages.  The jury did not reach a result on the issue whether Google’s use of the API packages constituted a fair use.  Google is reportedly seeking a mistrial.  The trial is now moving into a phase involving Oracle’s claims that Google infringed certain Java patents.

Trademarks Make the World Go ‘Round
Can’t-Miss Program on Nuts and Bolts of Trademarks

LJS headshot My esteemed partner, Lawrence Siskind, will be delivering his annual talk, “Nuts and Bolts of Trademark Law,” at the San Francisco Bar Association on July 12, 2012 from 12:00 – 1:30 p.m.  It doesn’t get any more fun than this!  I’ve attended before, and the program is both entertaining and informative.  Register now and tell Larry that Shades of Gray sent you!

Sharing the Love
Naomi Jane Gray joins The 1709 Blog team

I am pleased to announce that I have joined the team of The 1709 Blog, which is dedicated to “all things copyright, warts and all.”  The blog takes its name from the year of passage of the Statute of Anne, the copyright act that started it all, to which I am eternally indebted for my livelihood (h/t Her Maj. Queen A.).  Thanks to Jeremy Phillips, dean of the IP blogosphere, for the invitation.  You can also view the announcement of my joining The 1709 Blog over at Jeremy’s sister blog, The IPKat.

I will, of course, continue to post regularly here at Shades of Gray, so please keep reading!

In Memoriam – Schelle Simcox

It is with great sadness that I dedicate this post to the memory of my friend and former colleague, Schelle Simcox, who passed away last weekend after a courageous struggle with cancer. Schelle was formerly a law librarian in the San Francisco office of Paul Hastings, where I had the great privilege of working with her and becoming her friend. Schelle, along with her fellow law librarian Sara Paul, inspired and encouraged me to start this blog. Schelle was not only a terrific librarian and researcher (and as the daughter of a librarian, I know a good one when I see one). More importantly, she was simply the most wonderful friend and colleague a person could have. In addition to her professional skills, she had a deep and abiding interest in midwifery, and was a tremendous resource and source of support for me during my first pregnancy. I miss you, Schelle. I will never forget you.