Post Copyright Reform Monkey Selfie Crying Wolf

You may recall the strange affair of the monkey selfie, which resurfaced this past summer with the release of Wikimedia’s transparency report. A little after that story became news, I wrote a blog post to make a point about the photo’s authorship, and something people were getting wrong in their analysis.

Of course, we used the photo in the blog post.

Yesterday, we received this email:

This is the response we sent earlier today:

From: Sherwin Siy <ssiy@publicknowledge.org>

Date: Thu, Dec 11, 2014 at 11:13 AM

Subject: Re: Infringement notice

To: David Slater

Dear Mr. Slater:

Thank you for your email of December 10, regarding my August 6th blog post about the macaque photos taken with your camera.

To be brief, we have not purchased any license for the use of the photograph, and do not plan on doing so. We will also not be removing or substantively amending the post. We do not have any plans to allow you to publish your thoughts on this matter on our website. We may be commenting upon this matter, including this correspondence, on the site in the near future.

As you can tell from the post, I do not believe that you hold a valid copyright in that particular image. This allows us to reproduce the image without first seeking your permission, or listing you as a contributing factor to its creation.

You say that the photo has been registered with the “USCO;” I take this to mean the United States Copyright Office. In August, not long after I published my blog post, the Copyright Office issued an updated draft of its Compendium of Copyright Practices (http://copyright.gov/comp3/docs/compendium-full.pdf), the manual for its internal practices, including registration. Of particular note is its commentary on the “human authorship” requirement in section 306 (page 54 of the linked .pdf), which says that the Office will refuse to register a claim of copyright if a human being did not create the work. Lest you think I am stretching their point, their first specific examples of a non-human authored work (among other examples such as elephant murals, wave-shaped driftwood, or the natural appearance of animal skin) is

· A photograph taken by a monkey.

Even beyond the question of whether you have a valid copyright in that image is my, and my employer’s, exercise of our fair use rights. You will note that our use of the photograph was in the context of discussing that photograph. News reporting, commentary, and criticism are all quintessential examples of fair use, and this clearly falls within them. Whether or not our use of the image “benefits our mission” is largely irrelevant to that determination, too. If uses of copyrighted works were only fair when they were useless to the user, it would be a singularly useless doctrine.

You say

A public domain image is one in which a living author has voluntarily relinquished rights to the image. Any debate claiming acts of nature were resonsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain.

This is not true. It would be absurd for every instance of the use of public domain works to be litigated. The fact that certain works have no copyright holder (because the term of copyright has expired, because the work is not the creation of a human author, or because the work was not sufficiently fixed or sufficiently creative) means that there would be no one to definitively contest the usage in court. Publishers reprinting copies of The Murders in the Rue Morgue should not, and need not, wait for a court to grant them permission; users of creative works authored by the federal government of the United States do not have to go to court for permission each time they wish to use those images. If a particular person believes that a work is not in the public domain and that their rights have been infringed by a use, they are, of course, free to raise that question in court.

You also say this:

In so far as your contributor's claim that it is myself who claims Wikipedia is the source of the monkey owning copyright, please state your reasoning.

I confess to being a bit confused by this; I presume this comes from my statement in the blog post that

Basically, there’s a bit of a red herring going around, saying that Wikimedia claims that the monkey owns the copyright.

For the simple sake of avoiding any further confusion, let me clarify this by saying that I simply meant that a number of commentators (not you) were incorrectly following a tempting possibility that the monkey might hold a copyright. I certainly did not intend to imply that you were one of those commentators, or a red herring.

Having dealt with the legal questions, I would also like to discuss some of your other, non-legal complaints. You say that my blog post was “willfully damaging and disrespectful” to you. It was not. While we clearly disagree on the scope and applicability of the law, I never insulted you or mocked you. You might note that, at the bottom of the post, I, in the interest of being even-handed, even say you have a “colorable” argument for copyrightability—more credit than many of my learned colleagues have given you. The point of the post was to articulate a legal distinction that many missed—that the question was not whether or not a macaque could hold a copyright, but whether or not you could have a photograph in which no one held a copyright. Your actions and character were not disparaged, or even mentioned, because they were not relevant to that discussion.

I will note, however, that whether I was disrespectful or not has no bearing on any legal matters at hand here. While I believe I was more than fair in my treatment of your reputation in that post, I did then, and do now, have every right in the world to be disrespectful of you in public.

I hope that this letter resolves any dispute we might have. If it does not, we may be reached for service of process at the mailing address below. I eagerly await your reply.

Best regards,

Sherwin Siy

Vice President of Legal Affairs

202-861-0020 |@SherwinPK

Public Knowledge |@publicknowledge |www.publicknowledge.org

1818 N St. NW, Suite 410 | Washington, DC 20036

You can search the text of Mr. Slater's original email below:

From: David Slater

Date: Wed, Dec 10, 2014 at 1:10 PM

Subject: Infringement notice

To: pk@publicknowledge.org

Dear Public Knowledge,

I am writing to inform you that I have read your blog post authored by Sherwin Siy:

https://www.publicknowledge.org/news-blog/blogs/nobody-cant-hold-a-copyright-which-means-sometimes-nobody-holds-a-copyright

It is factually incorrect and damaging to me. It encourages the public to infringe my copyright of the monkey images. The text, in my opinion, is willfully damaging and disrespectful to me. This accords with your mission statement.

The exclusion of any proper accreditation to the image, or even mention of my name in relation to the image, infringes upon my moral rights to the image and is contrary to any Fair Use dealing. Furthermore, it affects the commercial value of the image to me. It is also being used to benefit Public Knowledge and your mission at the expense of my own. This is contrary to fair use and also your mission which claims to uphold the fair use doctrine.

The article is unbalanced and unfair and is infringing my publicity rights and rights to commercialize the image/s.

I do not believe you made any attempt to contact me, preferring instead to cherry pick sources that you know to be biased and encouraging theft of my images and destruction of my reputation and personality rights.

The image is registered with the USCO and is a part of a registered Image Rights under Guernsey Ordinance 2012.

Your site acknowledges it's core mission is to protect fair use and the public domain. Your site, in my opinion, is abusing fair use and damaging the concept of public domain.

A public domain image is one in which a living author has voluntarily relinquished rights to the image. Any debate claiming acts of nature were resonsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain.

Public Knowledge nor Sherwin Siy nor Wikimedia have the right to decide. Any action attempting to wilfully infringe copyright to make a claim for public domain, including textual references that encourage others to infringe, shall be liable for prosecution under the legal jurisdiction of my choice.

Public domain is NOT a place such as Wikimedia's Creative Commons or the internet.

You have cherry picked sources of information from Buzzfeed, Techdirt and the 1709blog, that simply agree with your mission to remove property rights from professional artists like myself using ridicule, poorly sourced material and unfounded reasoning.

In so far as your contributor's claim that it is myself who claims Wikipedia is the source of the monkey owning copyright, please state your reasoning. Note that Wikipedia states the author of the images is the monkey itself, with blatant removal of the true author's copyright watermarks. Authors are entitled to copyright.

I wish to see any evidence you have of any license you have purchased for the use of my image.

If you have purchased a license I will still require some amendment to the article.

I am willing to overlook your infringement if you rectify the article with another article that reports the facts of the story. I will work with you to do this and you will grant me the ability to comment on the article in draft form prior to publication. Publication should be within the calendar month of this e-mail.

I will await your acceptance for 24 hours in which to agree to rewrite the article. I will take your absence of any reply and acceptance of my terms as your acceptance of guilt and will forward your details to my lawyers in the US and UK..

Sincerely,

David J Slater

