SpicyIP Tidbit: Monkey Business and Birthday Songs

American copyright law seems to have seen a couple of interesting developments in the last few days. Over this post I’ll quickly give you the rundown on both.

You remember the monkey selfie? If you don’t, here’s a quick recap: a British photographer left his camera unattended in an Indonesian forest, allowing a particularly enterprising (and handsome, in Swaraj’s telling of the story) macaque to pick it up, play around with the buttons and take a bunch of selfies. The photographer claimed a copyright over the pictures and subsequently made commercial use of them in a wildlife book, and one of the images subsequently found its way onto Wikimedia Commons, which has a policy of only accepting non-copyright work. In the first round of the dispute, the photographer sent out a takedown request to Wikimedia Commons, which refused, reasoning that since the photographer wasn’t involved in the creation of the selfie, he could not claim copyright over it.

Round two seems to have commenced two days ago, with the animal rights NGO PETA filing a suit for copyright infringement against the publisher of the photographer’s book. PETA has sued in a California district court as the next friend of Naruto, the macaque. (You can view their very tongue-in-cheek filing here).

PETA’s suit is doubtless part of a larger animal rights awareness agenda, but their plaint makes for fun reading nevertheless – the animal cannot bring the action on its own for reasons of “inaccessibility and incapacity”, and he “authored the Monkey Selfies by his independent, autonomous actions in examining and manipulating [the photographer’s] unattended camera and purposely pushing the shutter release multiple times, understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens“. The exhibits attached to the plaint, though, really take the cake. Check out the PDF, from page 15.

The Birthday Suit

The other major development this week also comes from California district court, this time when a judge ruled that there was no evidence to suggest that Warner/Chappell, the publishing arm of Warner Music, owned the copyright over the iconic Happy Birthday song. While the original piano arrangement of the tune was copyrighted by Patty and Mildred Hill and assigned to a chain of entities that terminated in Warner, this tune was for words that went “Good morning to you/Good morning to you/Good morning dear children/Good morning to you”. The judgement (PDF) rejects a number of arguments raised by the plaintiffs (including indie filmmakers who were asked to pay royalties to Warner when they wanted to produce a documentary on the song’s history) before finally concluding that there was no evidence to show that the Hill sisters had authored the “Happy birthday” lyrics, and even if they had, there was no evidence to show that they (or anyone else who authored the lines) had assigned these rights to any entity from whom Warner could trace its ownership.

There still remains a small problem with the reporting of the holding, though (if you’ll allow me a bit of nitpicking) – the judgement can’t be taken as an authoritative statement that the song is in the public domain because it doesn’t say so. Merely holding that Warner doesn’t have a copyright on the song isn’t equivalent to saying that nobody has a copyright on it and therefore it’s in the public domain. It’s entirely within the realm of possibility that the author of the “Happy Birthday” lyric asserted her rights over the work some time in the past, and that its current status is in the nature of an orphan work. There’s also the less likely (but infinitely more interesting) possibility that someone, somewhere, will find evidence of authorship by an ancestor, and claim royalties even more aggressively than Warner did.