Copyright cases in the news: an update

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The monkey selfie

In the unlikely event that the case of the “monkey selfie” is unfamiliar, the background can be found in our earlier article, “Can a monkey own copyright?“.

The answer to the question we posed in our article would appear to be, at least for the moment, no.

The campaign group, People for the Ethical Treatment of Animals, were arguing that copyright in a photograph of a monkey – more specifically, a crested macaque – was owned by the monkey where the monkey had approached the camera, set up by the defendant, smiled at the camera and clicked the button. Peta argued that the applicable US legislation talked simply about “the author” of the copyright without specifying what species they belonged to.

The US Federal Court in San Francisco disagreed, ruling that, as the law currently stands, it is not possible for a monkey to own copyright.

Peta have described the ruling as a “setback”, but if the object was to attract publicity to their cause, they can congratulate themselves on a job well done.

Richard Prince

We have written before about Richard Prince in our article “Instagram, Copyright and Fair Use“.  Prince is a US artist who revels in pushing the boundaries of copyright law.  In particular, he has been taking other people’s Instagram photographs – without their permission – making minor adjustments to them, adding a comment to them and then selling the works for astronomical sums.  Prince has successfully defended claims for copyright infringement on the basis that his work is “transformative” of the original and, as such, within the fair use exception to copyright infringement.

It is reported that Donald Graham, a well-known photographer, has brought a federal complaint against Prince and a gallery housing his work for the unauthorised use of one of his most famous images, “Rastafarian smoking a joint”, an image which has been the subject of some transformative adjustment by Prince. The complaint apparently states that Prince has allegedly modified the original image by “minor cropping of the bottom and top portions”, “framing the Copyrighted Photograph with elements of the Instagram graphic user interface”, adding a thumbnail image of the Instagram account holder and a line of text below the image, “richardprince4 Canal Zinian de lam jam” accompanied by a fist emoji.

Reportedly Graham’s advisers have sent cease and desist letters to Prince and the gallery concerned.

There will be a number of photographers who will be rooting for Graham as this case progresses.

The dress

Something else that should need no introduction is “the dress” – was it blue and black or white and gold? One of the disappointingly less publicised aspects of the case of the dress is the copyright angle to it.  The photograph of the dress was taken by one Cecilia Bleasdale during the course of a shopping trip.  On her way home, she texted a picture of the dress to her daughter.  The daughter saw white and gold, the mother blue and black.  The daughter posted the dress on Facebook and the rest is history.  A Buzzfeed story about the dress attracted 39 million hits.  It featured on the evening news.

Bleasdale and the family are upset, however, that companies, such as Buzzfeed, have been using “the dress” to boost sales and that they themselves have received no credit for it. They feel that their property has been taken and exploited without their authorisation.  They have reportedly instructed a solicitor to pursue royalty payments.