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Internet Goes Bananas over Photographer's Copyright Claim to Monkey Selfie

While photographing macaques in Indonesia in 2011, British photographer David Slater's camera was taken from him by one of his subjects. The macaque subsequently took hundreds of images, one of which in particular has become a viral hit on the Internet (see below). The image is hosted by Wikimedia Commons, a site affiliated with Wikipedia and dedicated to sharing public domain media. Wikimedia has rebuffed demands from Mr. Slater to take down the image on the grounds that Mr. Slater holds no copyrights in the image because he did not actually take the photograph in question. Slater disagrees, and the public dispute has been getting a lot of attention. 

Macaca nigra self-portrait rotated and cropped

Wikimedia contends that non-human animals cannot own any copyrights because "works that originate from a non-human source can’t claim copyright." Notably though, the topic of animal authors is not mentioned at all in the statutory text of the Copyright Act. The U.S. Copyright Office adopts the position that authors must be humans in §202.02(b) of its Compendium II of Copyright Office Practices. This text is a manual intended for Copyright Office staff. It is unclear what statutory provisions the Copyright Office relies upon for this position. If this position holds, the image would indeed be in the public domain and no copyright to it could be claimed. 

Even assuming that there was some copyright to be claimed though, it is highly unlikely that Mr. Slater would be entitled to it. By default, copyright vests in the author of a given work. Here the monkey took the photo and would be considered its author. Unless a work is a "work for hire," those rights remain vested in the author. A work is considered a "work for hire" if it is "prepared by an employee within the scope of his or her employment." Here the monkey was not an employee of Mr. Slater, and so this doctrine would not help Mr. Slater. Also, any copyright assignment of rights must be in writing to be effective. There is no writing here, and it seems unlikely a monkey could even enter into a contractual agreement (much less one that was written and signed). 

Mr. Slater appears to believe that he is a partial author of the image because he adjusted the camera's settings before the camera was taken from him by the monkeys. This seems dubious though. At most it seems that he adjusted his camera's settings to properly expose in the jungle environment. He had no role in composing the image, focusing on the subject, etc. All of the creativity here seems to lie with the monkey.

If the facts were different here Mr. Slater would have a stronger claim. For example, if he created a derivative work of his public domain image (e.g., one that was sufficiently altered/edited) and then only distributed the derivative work then he may have exclusive had rights in the altered image. Unfortunately for him though, the original image is freely available.   

Read more about this story at the Washington Post

When 0.5% is not “The Real Thing”

On June 12 the Supreme Court held that private parties may sue competitors under the Lanham Act for false advertising in the form of misleading labeling, even though policing labeling is a regulatory function delegated exclusively to the FDA.

Coca-Cola’s Minute Maid Division sells a beverage with the words “pomegranate blueberry” displayed prominently on the label. The product contains 0.3% pomegranate juice and 0.2% blueberry juice. POM Wonderful LLC sells three pomegranate juice blends. None of them include blueberry juice, but they contain 40%, 50%, and 60% pomegranate juice. POM Wonderful decided Coca-Cola was not being truthful in its labeling, and sued under the Lanham Act, a federal law that allows one competitor to sue another if “in commercial advertising or promotion, [he or she] misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.” Another federal law, the Federal Food, Drug, and Cosmetic Act (FDCA) forbids the misbranding of food, including if “its labeling is false or misleading.” The FDCA pre-empts private parties and a “State or political subdivision of a State” from enforcing its terms; that job fall almost exclusively to the Food and Drug Administration (FDA).

Coca-Cola argued, and the Court of Appeals for the Ninth Circuit agreed, that the FDCA’s pre-emption language precluded POM’s private lawsuit under the Lanham Act. A unanimous panel of the Supreme Court (Justice Breyer abstaining) disagreed. Justice Kennedy wrote that the Lanham Act and the FDCA are complementary – not conflicting – federal statutes. The FDCA, by its express terms, pre-empts state law, not other federal laws. Furthermore, the two statutes serve different purposes. The Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety. Furthermore, they have different enforcement mechanisms, which are not necessarily in conflict. The FDCA’s enforcement is largely committed to the FDA, while the Lanham Act empowers private parties to sue competitors to protect their interests on a case-by-case basis.

The Court noted that competitors who manufacture or distribute products have detailed knowledge of how consumers rely on sales and marketing strategies, which the FDA lacks. “Their awareness of unfair competition practices may be far more immediate and accurate than that of agency rulemakers and regulators. Lanham Act suits draw upon this market expertise by empowering private parties to sue competitors to protect their interests on a case-by-case basis.”

 POM Wonderful may thus maintain its suit against Coca-Cola. If the parties do not reach settlement, it will be up to a jury to decide whether a label proclaiming “pomegranate blueberry” juice misrepresents a beverage containing less than half of one percent of either.


Master of None (Who Are You Calling a Softee?)

Trademark law, when properly applied and enforced, serves two functions of particular import.  The first is protecting consumers from being misled as to the origin of goods and services found in the marketplace.  The second is protecting product producers from having the goodwill of their brands usurped by competitors.   Although the trademark system has seen its share of abusers, particular events, at times, unfold that make us thankful for the safeguards that trademark law can provide.

"Mister Softee" is a legendary brand for anyone who, like me, grew up in New York City.  For me, the sound of the Mister Softee ice cream truck hearkens back fond memories of balmy, school-free New York summers, playing in the spray of open fire hydrants, and delicious frozen treats; treats like Bomb-Pops, Italian Ices, and of course, vanilla soft-serve cones with rainbow sprinkles.  Imagine my dismay when I discovered today that someone was knocking-off that beloved brand with their own "Master Softee" ice cream trucks.

Thankfully, U.S. District Judge Laura Taylor Swain has granted a preliminary injunction to put a stop to what she judged was a clear showing of harm to Mister Softee's business resulting from "Master Softee" trademark infringement.

You can read the Memorandum Opinion issued by the U.S. District Court of the Southern District of New York here (photos in the Appendix):

You can also read the story (and compare marks) here:

and read more here:


What is a Photocopier?

A recent New York Times opinionated documentary (i.e., "Op-Doc") has taken the transcript of a deposition "Verbatim" (as the short film is appropriately titled), and dramatizes a particularly ridiculous argument between an attorney and witness.  "Verbatim" won the audience award for best short film at the Dallas Film Festival and hilariously underscores how getting answers to even innocuous questions during litigation can become a seemingly sisyphean ordeal for everyone involved.

At just barely over 7 minutes, I highly recommend giving it a look:

The evolution of US patent examination from 1790 to 2014

Patent examiners often bear the brunt of criticism for perceived shortfalls of the US patent system (whether one views the USPTO as being too restrictive or too permissive). The job of a being a patent examiner tasked with determining whether a given invention is actually patentable is no doubt a challenging one.

This recent article from Slate provides a fascinating history of the USPTO (and its critics) from 1790 to present, and describes how the role of patent examiners has evolved throughout that time period.

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