Wednesday, October 14, 2015

PETA Sues Photographer on Behalf of…Neruto the Monkey


Things are now getting quite interesting in the world of copyright. Apparently, PETA (People for the Ethical Treatment of Animals) is suing David Slater, the photographer who way back when alleged that he owned the photograph taken by a Macaca monkey (imperialist mother fucker, right?).Why is PETA suing Slater for copyright infringement, you might ask? Ha, well, they’re suing on behalf of Naruto, the Crested Macaque (pictured above…dentists take note).

The photog’s claims were invalidated in large part due to the U.S. Copyright Office going on record stating that animals cannot own a copyright. And now you are probably wondering, why would PETA’s claim be any different? Here’s the complaint. You’ll note that under Paragraph 17, PETA argues that it is suing on behalf of Naruto because Naruto’s “rights cannot be effectively vindicated except through an appropriate representative.”

This a joke? Don’t think so. According to the complaint, PETA seeks,

“an order of the Court permitting PETA to administer and protect Naruto’s rights in the Monkey Selfies on the condition that all proceeds from the sale, licensing, and other commercial uses of the Monkey Selfies, including Defendants’ disgorged profits, be used solely for the benefit of Naruto, his family and his community, including the preservation of their habitat, in consultation with Dr. Engelhardt and other third parties who are already working for such benefit and preservation. PETA’s and Dr. Engelhardt’s services will be provided without compensation in furtherance of their respective charitable animal protection and scientific missions.”

In a quick note to yours truly this morning, Lauren van Haaften-Schick wondered if this was a “way of establishing property and maybe by extension human rights for apes?” She may be right. Your thoughts?


Happy Birthday In the Public Domain?

Although the judge stopped short of saying that the “Happy Birthday” lyrics are now in the public domain, for now it appears that they are (the music already is). My guess is Warner Music won’t appeal; the evidence is too strong against their claim of ownership. Anyhow, if you’re bored here’s a copy of the court’s opinion (thanks to Shades of Gray Law). Enjoy with black coffee and Nutella!


Artistic Intent Is An Integral Component of Transformative Fair Use


Argues Nate Harrison in his recently published article, What is Transformative?

[...] there is some truth to her generalization that “the goal of current art is to throw the idea of stable meaning into play,” but the logic that art therefore floats in a state of suspended relativism, or meaninglessness, or that artists are consequently absolved from taking responsibility for their appropriations, does not follow. There are all sorts of artists today who appropriate with the clear intention of providing new ways to rethink established meanings. Candice Breitz, Penelope Umbrico and Paul Pfeiffer are just a few examples of artists who appropriate in order to engage in a de-stabilizing, but then re-stabilizing, meta-process of critical reflection (that is de-stabilized yet again with future art works). “Meaning” in these artists’ works isn’t dissolved so much as augmented.

Although I am generally quite tired of the “fair use” arguments in visual art (none are particularly that interesting, let alone rigorous), I agree with Harrison on his point of artistic intent, and in fact it is the argument I have been making for quite some time now. Our meeting-of-the-minds is perhaps due to the fact that both Harrison and I are CalArts grads taught by a slew of artists who all believed in artistic intent and not art-for-art’s sake (“The world doesn’t need more objects or bad art.”) But I think that our position goes a bit deeper into a more philosophical question of what the role of the artist is and what role the artist plays in society, culture, economics, history and, yes, law. For quite a few us, the role of the artist is not to stroke or choke the art dealer’s chicken.

In a time when art making has been reduced to asset production and financial speculation, it pains me to see great minds align themselves with those that see art as nothing but a commodity. At the time I don’t have the time or the care to pen an argument against these minds. My battle in this war lies elsewhere, outside of the gallery and museum walls, auction houses, and well beyond art parties and cocktails. History will absolve us.


Guest Post: Copyright Registration Strategies


By Talia Kosh, Esq.

In my last blog post, “Is the Copyright Office Inflating the Need For Orphan Works Legislation?” my main discussion points there were few, if any, comments about the substantive opinions presented. But a few readers did have issues with my conclusory statements wherein I characterized copyright registration as “cheap and easy.” In one respect, I admit, I shouldn’t refer to anything as “cheap and easy” these days, as it is a wholly inaccurate description of pretty much everything. So, let me qualify this-it is cheap and easy compared to the costs and difficulty in protecting other kinds of intellectual property, like patents and trademarks. Copyright registration is something most artists can experiment without legal assistance and great cost, outside of more complex registration questions. However, this does not really help individual artists or small businesses who produce a lot of content. So let’s break it down and then you can make your own conclusions about how cheap and easy it is, depending on what type of content you are registering. At the very least t it can help you get strategic about what you choose to register, if anything at all. And what I state here will probably raise even more questions, but let’s dig in.

Read the rest of this entry »


Dancing Baby Brings Good News to Appropriators

On Monday, the 9th Circuit ruled in Lenz v. Universal, known as the “dancing baby” lawsuit, that copyright holders must consider fair use before demanding potentially infringing material be removed from the internet under the Digital Millenium Copyright Act (DMCA). The case stemmed from a 29 second video posted on YouTube by Stephanie Lenz in 2007 of a child dancing while Prince’s song “Let’s Go Crazy” played in the background. Universal Music Group, responsible for enforcing Prince’s copyrights, sent a takedown notice under the DMCA to YouTube, claiming the video infringed on the copyright in Prince’s song. Lenz, represented by the Electronic Frontier Foundation (EFF), sued Universal, alleging the company had abused the DMCA by targeting a lawful fair use of the song.

Such an attempt to remove content known to be lawful would violate §512(f) of the DMCA, a section intended to prevent abuse by providing for damages for the alleged infringer if a person “knowingly materially misrepresents … that material or activity is infringing.” The person requesting a takedown must satisfy certain conditions outlined in the DMCA and also must hold a subjective, good faith belief that the use of the material is not “authorized by law” under §512(c)(3)(A)(v). In 2007, Universal’s legal department monitored YouTube for possible unlawful copyright violation under a set of criteria which did not explicitly include consideration of the fair use doctrine.

dancing baby

Dancing Baby via YouTube

The primary question in the case concerned whether fair use is “authorized by law” in the above cited section of the DMCA. Universal argued that fair use qualifies as an affirmative defense, an excuse for otherwise unlawful use; a good faith belief therefore would not have to consider fair use. The court disagreed, finding that the Copyright Act defines infringement based on what does not qualify, namely, certain categories of fair use, as stated “… the fair use of a copyrighted work … is not an infringement of copyright” and is therefore authorized use under §512 of the DMCA. Fair use must be considered before a takedown notice can be sent. Thus, the 9th Circuit held “that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”

However, the court did not decide whether the criteria used by Universal’s legal department in identifying copyright infringement satisfied the “good faith belief” standard. In attempting to clarify this standard, the court stated that a copyright holder may not “pay lip service” but also does not require a “searching or intensive” review of fair use law. The court mentions that computer algorithms which are used to identify potentially infringing content may still be used, but must now also consider fair use, sort of. The court also found that Lenz is not required to show monetary damages to recover under §512 (f); however, she must demonstrate that the copyright owner had actual knowledge of misrepresentation.

Supporters tout the decision as a win for free speech. EFF Legal Director Corynne McSherry noted “Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.  We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.” Others question the effect the decision will have on the barrage of takedown notices sent regularly to Internet Service Providers, citing the ambiguity of the court’s interpretation of the “good faith belief.”


USC Takes Down MFA Students’ Tumblr

An unofficial blog created by the MFA students at USC’s Roski School of Art and Design and hosted on Tumblr was taken down last month following a request by an attorney representing the university.  Students created the blog in December 2012, before the controversy earlier this year which resulted in an entire class dropping out of the program. Information and events were posted, as well as the additional commentary of students who sought a platform separate from the university.  The blog also hosted a project called “Collective Dean,” a response to the departure of former Roski Dean Rochelle Steiner in the fall of 2012. As students clashed with Roski administration over the newly appointed dean, the blog provided a forum for open letters and comments related to the conflict. USC provided a statement to Hyperallergic which justified the takedown on the basis of infringement of the USC brand: “The USCMFA Tumblr page was a trademark infringement and created the impression it was an official account from USC Roski… The program name and graduate building address appeared clearly on the page at all times.” Students have recreated the blog at a new URL.

More via Hyperallergic.


Now Accepting Applications for the 2016 Art & Law Program

Applications for the 2016 Art & Law Program are now being accepted. 

Deadline for applications:  October 19, 2015

Going on its 7th year, The Program seeks qualified, open-minded and self-motivated individuals with an interest in the philosophical relationship between art and law. In particular, The Program welcomes candidates who are open to controversial dialogue and who seek to challenge their respective practices and ideological positions. Please note that the Program is not for everyone. Applicants are encouraged to study and fully understand the mission of the Program and speak with alumni regarding the Program’s structure, ideology and expectations of its participants.

Art & Law Program seminar on contemporary art, copyright and moral rights.

Art & Law Program seminar on contemporary art, copyright and moral rights.

In 2016, the Program will cover law and critical theory, tangible and intangible property, technology, drones, language and contracts, international territoriality and jurisdiction, economic and moral rights, the legal system and legal interpretation, and the U.S. Supreme Court. Participants are expected to review dense legal material.

The Program does not focus on traditional and conventional critical theory, but rather investigates how the philosophy and practice of law disturbs the critical theory establishment and creates a new space and discourse for aesthetic and intellectual practices. Nor is the goal of the program to provide a practical overview of legal issues for artists, but instead to investigate broader legal and juridical infrastructures, which may or may not relate to art and art practice – that is for participants to decide.

Application instructions may be viewed hereApplications are due October 19, 2015.

The Program runs from January 19 - April 19, 2016 and will meet at the Triple Canopy space in Brooklyn, New York. Please reserve Monday and Wednesday nights, 6-9pm, for the seminar meetings. The Program concludes with a retreat at Denniston Hill artist residency. The Program welcomes alum and art historian/curator, Lauren van Haaften-Schick as Associate Director of the Program.

The Art & Law Program is an independent organization based out of New York City. For more information on The Program, please view the Program description. Program and application inquiries should be sent via e-mail to:


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