On August 13, we posted about a copyright dispute that had arisen regarding whether a “monkey selfie” would be entitled to copyright protection. Please click on this link to read our post: https://affinitylaw.wordpress.com/2014/08/13/who-owns-the-copyright-to-the-now-famous-monkey-selfies/
The US Copyright Office recently issued new copyright regulations, which make clear that the “monkey selfie’ (or any other work by a non-human “author”) is not entitled to copyright protection. Please click on this link to read more: http://www.nbcnews.com/tech/social-media/monkey-selfie-cant-be-copyrighted-u-s-regulators-confirm-n186296
Bullseye! Court Holds That Suspended Corporation Can Sue For Trademark Infringement As An Unincorporated Association
In its recent opinion in Southern California Darts Association v. Zaffina (Case No. 13-55780), the Ninth Circuit Court of Appeals held that a business entity that had its corporate powers suspended by the State of California nevertheless could sue for infringement of its trademarks.
For forty years or more, the plaintiff has promoted the competitive play of the game of darts and has coordinated league play of this game. For a time, beginning in the 1960s, members of the plaintiff formed and ran a corporation named “Southern California Darts Association, Inc.” The corporate powers of the original corporation were suspended by the State of California in 1977, apparently for nonpayment of the corporate franchise tax. Thereafter, the plaintiff continued to use a number of trademarks including its full name (“Southern California Darts Association”); the acronym “SCDA”; the nickname “SoCal Darts”; and a logo featuring the organization’s full name and a dart board.
A main issue in Zaffina was whether the plaintiff had capacity to sue because its corporate powers had been suspended in 1977. Under California law, a delinquent corporation whose powers have been suspended may not bring suit and may not defend a legal action.
However, in Zaffina, the Ninth Circuit held that the suspension of the original corporation’s powers does not necessarily extinguish the plaintiff’s capacity to pursue federal trademark claims in federal court. To reach this conclusion, the Ninth Circuit relied on Rule 17(b)(3)(A) of the Federal Rules of Civil Procedure, which states that a “partnership or other unincorporated association” that lacks the capacity to sue under the law of the state in which the court is located “may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws.” Because the plaintiff was pursuing a federal trademark infringement claim in federal court, it had the capacity to sue.
From the “you thought you had seen everything” department, we bring you the question of who — if anyone — owns the copyright to the now famous “monkey selfie” picture. By now, most of you probably have heard or read about this story. A British nature photographer was travelling in a national park in Indonesia and left his cameras unattended for a few minutes. A band of black macaque monkeys – thought to be among the most intelligent breeds of monkeys — wandered by. One of them grabbed an unattended camera and took a series of “selfies” which actually are quite excellent, stunning and humorous. Here are some examples of the monkey selfies:
Ultimately, the photos ended up on Wikipedia, who refused to take them down after objection from the photographer because, in Wikipedia’s view, the photographer doesn’t own any copyright rights in the monkey selfies since he didn’t take the pictures.
In the ordinary case, a person who takes a selfie normally would own any copyright rights that would attach to the selfie. However, under United States copyright law, a non-person like a monkey cannot own a copyright. Therefore, it is clear (please hold your laughter!) that the monkey doesn’t own the copyright in his/her selfies.
But the question remains: does anyone own a copyright in the pictures? If the photographer had exercised some creativity by setting up the camera, arranging the shot, setting the exposure, etc., and then the monkey just pushed the button, the situation would not be that much different from a picture taken using a timer so the photographer might have a good argument that he owns the copyright. But that does not appear to be the facts here – instead, the pictures appear to be the product of the random acts of the monkey or maybe (if possible???) the creativity of the monkey not the photographer. So it does not appear that the photographer has any claim to the copyright.
For legal purposes, a monkey could be considered “property” under certain circumstances. There have been cases that have held that the owner of the property can own the copyright that might attach to the property in some way – think of a random video of a dog doing something funny. Which could mean that the owner of the monkey is the owner of the copyright. However, the monkey that took the selfie here was a wild monkey. It may be possible to determine whether Indonesia owns its wildlife, but such a result seems doubtful. Instead, the most likely result here is that Wikipedia is correct: no one owns the copyright in the monkey selfies but instead the photos are in the public domain.