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More Monkey Business: Copyright and the World’s Most Famous Monkey Selfie

Posted on 4 min read 127 views

In my other life as an intellectual property lawyer, I receive almost weekly proof that copyright law is the gift that goes on giving. This time it’s in the form of the world’s most famous monkey selfie, which first surfaced, in this blog and others, last year when an earlier copyright dispute came to light. The selfie has resurfaced, this time at the heart of yet another peculiar lawsuit, this one filed by PETA (People for the Ethical Treatment of Animals, Inc.) on behalf of “Naruto,” the monkey who snapped the famous selfie.

For those Rip Van Winkles among us who have just awakened from a ten-year snooze, a “selfie” is a photograph that you take of yourself, typically with a smartphone, and often share via social media. For example, at the 2014 Oscars ceremony, Bradley CoOscars-2014-Ellen-Degeneres-Celebrity-Selfie-Blasted-for-Product-Placement-431571-2[1]oper took a selfie with Ellen DeGeneres and several other celebrities. Here he is (in the photo on the left) snapping the selfie. The result (on the right) became the most widely shared selfie on Twitter and other social media.Ellen-Selfie[1]

But three years earlier, a far different selfie scenario unfolded while nature photographer David Slater was on vacation in Indonesia. A group of crested black macaques started playing with the camera equipment he had set up. “They were quite mischievous,” he told The Telegraph, “jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it. He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus.”

A few were, however, and Slater included them in his book Wildlife Personalities (with the selfie above as the book cover). The monkey selfies became an Internet phenomenon, and–alas–the center of two separate legal disputes.

The first was a battle with the Wikipedia Foundation, which posted that monkey selfie online in its collection of public domain images and refused to take it down, arguing that Slater didn’t own the picture’s copyright because he didn’t take the picture—the monkey did. And since the monkey can’t own the copyright, Wikipedia argued, nobody does.

Slater’s latest battl7JgmFv6[1]e is with PETA and Antje Engelhardt, Ph.D., who, as  “next friends” of the macaque, have filed a copyright infringement lawsuit against Slater and his publisher. “Naruto,” the complaint alleges, “is a free, autonomous six-year-old male member of the Macaca nigra species, also known as a crested macaque, residing in the Tangkoko Reserve on the island of Sulawesi, Indonesia.”

The heart of the complaint is the claim that Naruto “has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author.” The Complaint seeks a declaration of Naruto’s rights, an injunction against use of the photos, an accounting of all profits attributable to the infringement and appropriate damages, permission for the Next Friends to administer and protect Naruto’s rights, an order that the proceeds from the sale, licensing, or other use of the photos be used solely to benefit Naruto and his community.

If asked to bet on the outcome of this lawsuit, I’d put my money on Slater and his publisher, but not for any sentimental reasons or for fear that this lawsuit is the harbinger for the real Planet of the Apes. Instead, I’d point to the Copyright Office and the U.S. Constitution:

  • The Copyright Office: Chapter 306 of the Compendium of US Copyright Office Practices states: “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.”   The Copyright Office specifies that it “will not register works produced by nature, animals, or plants.” One example it offers:  “A photograph taken by a monkey.”
  • The U.S. Constitution: It’s easy to forget that the copyright and patent laws grant to authors and inventors a monopoly over their creations for a certain period–20 years for a patent owner, a lifetime plus 70 years for an author. For a nation that celebrates free enterprise and competition, what is the justification for this grant of monopoly? It’s right there in the Constitution. Specifically, Article I, Section 8, Clause 8, which empowers Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, the justification for giving authors the exclusive rights in their creations is to provide them with an incentive to create art that will ultimately enrich our culture. Thus while monkeys have many endearing qualities, our Founding Fathers realized that granting them an exclusive right in their works would in no way give them an incentive to create those works. And thus the central purpose behind the copyright monopoly has no application outside the human race.

Which is not to say that Naruto’s selfie isn’t far more intriguing than 99% of the selfies taken by humans and posted onto social media. It’s just to say it’s in the public domain for all to enjoy. And while I’ve had to battle a variety of obnoxious animals in three-piece suits in the courtroom, I’m relieved to know that posting this monkey selfie on my blog won’t result in a call from a real gorilla that Naruto hired as his licensing agent.

The Donald, the Orangutan and Me: A Little Monkey Business

Posted on 6 min read 122 views

As a lawyer by day and an author at night, I’ve had times when the realm of fiction intersects with the realm of reality. One example, gleaned from my years representing newspapers and publishers, is the law of libel, where the jury must decide whether the allegedly defamatory statement is true or fiction. If true, the plaintiff loses. If fiction, the plaintiff wins.

Occasionally, however, the dividing line between fact and fiction in a libel case is more subtle, namely, is the statement, though fiction, one that a reasonable person would believe to be fact. Huh?

The best example is the lawsuit Rev. Jerry Falwell filed against Larry Flynt over a parody ad that ran in a 1983 issue of Hustler magazine. The ad was modeled on a series of Campari liqueur ads in which a celebrity talked about his or her “first time”–which turned out to be the first time tasting Campari. Here’s an example featuring Jill St. John.

The United State Supreme Court described the Falwell ad parody as follows in its unanimous opinion in Hustler Magazine v. Falwell:

The inside front cover of the November 1983 issue of Hustler Magazine featured a “parody” of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled “Jerry Falwell talks about his first time.” This parody was modeled after actual Campari ads that included interviews with various celebrities about their “first times.” Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of “first times.” Copying the form and layout of these Campari ads, Hustler’s editors chose respondent as the featured celebrity and drafted an alleged “interview” with him in which he states that his “first time” was during a drunken incestuous rendezvous with his mother in an outhouse.

Here is that infamous parody ad.

Although the lawsuit reached the Supreme Court on a different legal theory, Falwell’s libel claim died in the trial court, where the jury found that no reasonable person reading that ad would have believed that it was a real interview of Rev. Falwell or that his first sexual experience was with his mother in an outhouse.

Which brings us to the Donald and an alleged sexual rendezvous of a somewhat different nature. In the Fall of 2012, at the height of the last Presidential campaign, Trump jumped into the “birther” controversy with what he labeled his “October surprise”: “I have a deal for the president,” he announced, “a deal that I don’t believe he can refuse, and I hope he doesn’t. If Barack Obama opens up and gives his college records and applications, and if he gives his passport applications and records, I will give, to a charity of his choice—inner-city children in Chicago, American Cancer Society, AIDS research, anything he wants—a check, immediately, for $5 million.”

A few weeks later, comedian Bill Maher told Jay Leno on The Tonight Show that he had his own “October surprise”: he would pay $5 million to Trump’s charity of choice (which, according to Maher, was the Men’s Hair Club) if Trump provided a birth certificate proving that he’s not “spawn of his mother having sex with orangutan.” True to form, Trump immediately had his lawyer send Maher a copy of his birth certificate with a letter demanding the $5 million. As the letter stated, “attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan.” When Maher ignored the demand, Trump filed a $5 million lawsuit for breach of contract. Although the rest of the world understood that Maher’s offer was a joke, Trump insisted otherwise in an interview of Fox News: “I don’t think he was joking. He said it with venom. That was venom. That wasn’t a joke. In fact, he was nervous when he said it. It was a pathetic delivery.”

Amidst much derision, Trump withdrew his lawsuit a few weeks later. His lawyer, however, insisted that the withdrawal was only temporary, claiming that it had “been withdrawn to be amended and refiled at a later date.” That was more than 2 years ago. The lawsuit has not yet been refiled.

And thus a lesson in fact versus fiction, compliments of the Donald. And perhaps a bigger lesson in the Donald World versus reality. Indeed, if that lawsuit is any indication, the Donald has some personal challenges ahead of him before he tries to “make America great again.”

The Big Lebowski Meets The Big Sleep

Posted on 4 min read 249 views

The other night I settled down to watch “The Big Lebowski,” a terrific Coen brothers film that features three of my favorite actors (Jeff Bridges, John Goodman, and Steve Buscemi) playing three of my favorite characters (the Dude, Walter Sobchek, and Donny Kerabatsos).

The Dude, Donny, and Walter

I’d last watched the movie about ten years ago. If you’d asked me before I started the film to describe it in five words or less, my answer would have been “A stoner crime comedy.” But 20 minutes into the movie, I had my epiphany, But more on that in a moment.

Many of us Baby Boomers function under the misconception that we are totally hip. After all, my man, we are the generation of Woodstock, “Easy Rider,” Bob Dylan, and, of course, weed. Sadly, we are also the generation that keeps getting reminded how unhip we are. Such as the time I was doing a patent review for a hat company’s latest product, the Stash Hat. It was a baseball cap with a small Velcro pocket on the inside of the front panel. Perfect, I thought, for storing your house key when you went jogging. Noticing that all five sample hats had the same number embroidered on the front and thinking perhaps the company had mistakenly added a zero to what should have been 42 (a more common baseball number), I raised the issue with the company’s 69-year-old chief financial officer, who chuckled as he explained the meaning of 420. I listened, dumbfounded.420_baseball_hat[1]

“Oh,” I finally said.

“That’s why we call it the Stash Hat, Mike.”

Shocked, I sent an email to my five kids, asking whether they had ever heard of the meaning of 420, and all five responded with variations of “Well, duh!”

If you’re still clueless, Google “420” or check out this link.

Another example: I recently learned of the existence of the term RBF–and, as a further insult to my hipness, I learned of its meaning not from High Times or Rolling Stone Magazine but from a far stuffier publication nicknamed the Grey Lady.

Bigsleep2[1]So back to my epiphany. Around the time that the Jeff Lebowski (a/k/a the Dude) is escorted into the den of the other Jeffrey Lebowski–an older, wealthy patriarch in a wheelchair–I suddenly realized that this scene echoed a similar encounter with an older, wealthy patriarch in a wheelchair in a mystery novel  whose title also started with the words “The Big.” Yes, Raymond Chandler’s The Big Sleep (and the Howard Hawks film of the same name). And sure enough, a few more scenes into the movie the wealthy old man in the wheelchair hires the Dude to find a kidnapped female member of his family.

Amazed, I started jotting down notes as the movie progressed, and when it was over I had identified an impressive list of parallels. Believing that I was now ready to write the Hollywood equivalent of Darwin’s Origin of the Species, I decided to quickly confirm my genius with a Google search.

Alas, the very first result was the Wikipedia entry for The Big Lebowski, the second paragraph of which read:

The film is loosely inspired by the work of Raymond Chandler. Joel Coen stated: “We wanted to do a Chandler kind of story – how it moves episodically, and deals with the characters trying to unravel a mystery, as well as having a hopelessly complex plot that’s ultimately unimportant”

Humphrey Bogart

And that was just 1 of 240,000 results on Google for the search “the big lebowski and the big sleep.”

So maybe I’m not quite as hip as I thought. But for those of you–especially my fellow mystery writers and mystery fans–who might be interested, here are some other parallels between the two tales:

  • Both movies are set in Los Angeles and feature a bachelor detective;
  • Both movies feature a sexy young woman in the patriarch’s family–the younger daughter in The Big Sleep, the young wife in The Big Lebowski–who flirts with and tries to seduce our detective;
  • A ransom note handed to the patriarch  sets the plot in motion in both movies;
  • A pornographer plays a key role in a plot point in each movie: Arthur Geiger in The Big Sleep and Jackie Treehorn (played by Ben Gazzara) in The Big Lebowski;
  • Both movies feature a more mature femme fatale–the patriarch’s older daughter in The Big Sleep, the patriarch’s sister in The Big Lebowski–who yanks the plot into a new direction;

The-Big-Lebowski-movies-25347166-1400-1000[1]These are just some of the parallels. For more paralells, explore here and here.

As Ben Walthers wrote in Time Out London:

Both movies are private-eye investigations of oddball corruption, set against a Los Angeles populated by forlorn grandees in secluded mansions, over-privileged girls gone wild and a menagerie of thugs, saps and loons. Both see a man plunged into a mystery beyond his initial comprehension in which he is charged with assuring the safety of an irresponsible young woman. What’s more, both have outrageously labyrinthine plots – though at least ‘The Big Lebowski’ makes sense on a second or third viewing. The fine narrative detail of Hawks’ movie is famously impenetrable even to the most determined viewer.

Oh, yes, and that earlier reference to 420. I have it on good authority that the Dude recommends it for your next viewing of the film.

A Shout-Out to Poisoned Pen Press

Posted on 1 min read 53 views

On this, the day after Independence Day Weekend, I pause to give a shout-out to my publisher and its support of independent bookstores–the ones who still have bookshelves with books on them.

9781464204395_FC-181x276[1]Like most mid-list writers, each of my first seven novels eventually went out of print and were available only as eBooks. But then Poisoned Pen Press proposed to bring all seven of them back in print. Yes, going ALL THE WAY BACK to my first novel, Grave Designs (originally published under the title The Canaan Legacy). It was a wonderful moment–and it’s been so much fun watching each new edition roll off the press.

When asked during an interview many years ago to describe the most satisfying thing about having your book published, the answer was easy: having my kids take my book 9781464204401_FC-181x276[1]to school for show-and-tell. Taking one of my books to school was a lot more appealing to them than taking one of the legal documents their dad prepared during the day, such as a motion for summary judgement or a set of objections to interrogatories.

The kids are all grown, but there are now 5 grandkids in need of show-and-tell books. So thanks, Poisoned Pen Press!

Top 10 Baseball Walk-Up Songs in Literature

Posted on 3 min read 67 views

moby_dick_baseball_cap[1]For the true baseball fans among us, name a favorite player and you can name his walk-up song. Same for your team’s closer (whose walk-up song is known as the “entrance song”).

For the uninitiated, a walk-up song is that heavy metal, hip hop, or country tune that blares throughout the stadium as the player walks from the on-deck circle to the batter’s box–or, for the closer, as he jogs in from the bullpen to the mound.

We baseball fans are prone to nostalgia, and thus I miss the sight and sounds of former Cardinal Lance Berkman striding to the plate to Johnny Cash’s “God’s Gonna Cut You Down.” And what Yankees fan, when hearing Metallica’s “Enter the Sandman,” doesn’t sigh at the memory of the Mariano Rivera coming in from the bullpen for yet another save. Here’s a link to the Top Ten entrance songs for closers, which includes retired baseball_shakespeare[1]Cardinals closer Al “Mad Hungarian” Hrabosky, whose entrance song was –ready?–“Hungarian Rhapsody No. 2” by Franz Liszt. I promise.

Sadly, we writers don’t get walk-up songs. Which is not to say we don’t dream of playing in the Majors, and more than one of us has fantasized about our own baseball card, Will Shakespeare included. Indeed, there are rumors that the Bard confided to friends that if he could ever pitch relief in the Big Leagues his entrance song would be Thomas Bateson’s “First Set of English Madrigales.”

stephenkingfishface[1]All of which got me thinking about great characters in literature. What would Hamlet select for his walk-up song? Or Nancy Drew? Or Captain Ahab? Or Madame Bovary?

If a Google search turns up hundreds of “Top 10 Walk-Up Songs for Baseball Players,” why not at least one for fictional characters? Some of the choices are perhaps too obvious, such as Satan from Milton’s Paradise Lost, apparently a Mick Jagger groupie who insists that his walk-up song be “Sympathy for the Devil.” So, too, Hester Prynne of Hawthorne’s The Scarlet Letter was rumored to be a big fan of Aretha Franklin’s “Respect.”

But I’m willing to give it a shot–at least for the first five fictional characters. I’m hoping some of you out there can help pump the list up to ten.

Here are my 5:

  1. Iago (of Othello): “Bad to the Bone” by George Thorogood
  2. Elizabeth Bennet (of Pride and Prejudice): “King of Anything” by Sara Bareilles
  3. Holden Caulfield (of Catcher in the Rye): “(I Can’t Get No) Satisfaction” by the Rolling Stones
  4. Jay Gatsby (of The Great Gatsby): “Mo Money Mo Problems” by The Notorious B.I.G. (with Puff Daddy)
  5. Stephen Dedalus (of Portrait of the Artist as a Young Man): “Learning to Fly” by Tom Petty and the Heartbreakers
  6. sherlock_holmes_baseball_cap[1]

Now your turn. The possibilities are endless–and fun to contemplate. You a mystery fan? Your choices include Miss Marple, Sherlock Holmes, Hercule Poirot, Nero Wolfe, Harry Bosch, and, of course, Rachel Gold. American literature your thing? There’s always Huck Finn. Or even Moby Dick. World literature includes Anna Karenina, Emma Woodhouse, and Sancho Panza. And there’s science fiction, and there’s romance, and there’s Young Adult. And then there’s that group of characters I think of as low-hanging fruit, including Gregor Samsa (of Kafka’s The Metamorphosis) and Charlotte (of Charlotte’s Web).

So pick a favorite character, pick that character’s walk-up song, and let us know.

All Our Yesterdays: A Salute to the Bard

Posted on 2 min read 67 views

We have all heard–over and over and over again–that the greatest writer in the history of EnglishMacbeth - Poster literature is William Shakespeare. And we can all recognize how remarkable it is that plays he wrote more than four centuries ago–dramas and comedies performed for the masses–are still being performed around the world today. And we can all concede that no contemporary author, or any other one, can claim as many film and television adaptations as the Bard.

Yes, we can acknowledge all that and get on with our daily lives. But then, out of the blue, you will collide with the genius of Shakespeare, and you will experience a moment of true awe.

My latest unexpected encounter occurred yesterday as I was reading the Wall Street Journal, which ran an appreciation of Orson Welles on his 100th birthday, including a piece on his 10 essential movies. One of those ten was his production of Shakespeare’s Macbeth, and the article included a link to Macbeth’s soliloquy in Act 5, Scene 5, upon learning of the death of Lady Macbeth. At the bottom of this post are those 10 extraordinary lines. They are profound and moving and more powerful than I remembered–and they are even more so when spoken aloud. So prepare for your moment of awe.

poster_2[1]Here is a link to the Orson Welles version from his motion picture.

And for an example of the timeless power of Shakespeare, here is a link to the Patrick Stewart version from a production of Macbeth in a modern military setting.

And here are those words, as first performed on stage at the Globe Theatre in 1611:

To-morrow, and to-morrow, and to-morrow,
Creeps in this petty pace from day to day,
To the last syllable of recorded time;
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life’s but a walking shadow, a poor player,
That struts and frets his hour upon the stage,
And then is heard no more. It is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.