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Copyright gone amok: Privacy policies, tweets & selfies

by | Mar 9, 2021 | Firm News

Copyright is a limited monopoly on the right to copy, disseminate, create new works from and exploit works protected under copyright law, e.g., photographs, paintings, drawings, sculpture, mixed media works, video, film, musical compositions, sound recordings (but currently only sound recordings made after Feb. 15, 1972), and literary works and other writings that have at least a modicum of creative expression. With the rise of the Internet, the number of people creating and disseminating matter that is potentially protectible under copyright law — let’s call them “disseminators” — has increased exponentially. At the same time, an uncountable number of disseminators, both individual and corporate, have sought to extend the bounds of copyright protection, often to the point of absurdity.

Take for instance the typical website Terms of Use and Privacy Policy. There is a belief out there that these are protected by copyright. Indeed, even law firms whose practice focuses on intellectual property have a bad habit of placing copyright notices on their Terms of Use and Privacy Policy pages, despite the fact that these documents consist of legal notices, statements of law and instructions to the user. They don’t contain protectible matter because there is no original authorship. The content is driven by law, potential and imagined liabilities, and convention. Moreover, they are written with the intent to fulfill a function, not to create literary expression. There might be ways to create literary expression out of such documents, but the result would probably qualify as parody.

Even more to the point, who would ever issue a cease and desist letter or threaten to sue over someone copying their Terms of Use or Privacy Policy? And knowing you would never go after someone for re-using a terms of use or privacy policy, why would you put a copyright notice on it? Lawyers and others who perpetuate the notion that there is a copyright interest in these documents contribute to the overall misunderstanding among the public of the very spirit and purpose of copyright law. Copyright law appropriately sets the bar very low for the amount of expression that it takes to qualify as protectible, but many legal documents don’t — and shouldn’t — qualify.
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techdirt made some news this past week by attempting to register the copyright for the following Tweet:
Monkey bar fallacy: a bad person using something makes it bad. E.g., users of monkey bars include: children, TERRORISTS #tor
The Copyright Office declined registration, probably because the Tweet falls under the what-is-not-protected-by-copyright categories, “works consisting entirely of information that is common property” and “short phrases.” Definitions, which the Tweet appeared to be, are not protected by copyright because words or short phrases belong to no one, at least when they aren’t used as trademarks. Note, however, that text that may accompany a definition, such as sentences using the word being defined, may be protected. In addition, “monkey bar fallacy” is a short phrase. This isn’t to say that no Tweets are copyright-protectible. It simply means that techdirt’s “a-bit-of-data department” (which sought the registration) picked a bad example.

One thing about [https://www.techdirt.com/articles/20140802/07535628090/copyright-office-rejected-my-attempt-to-copyright-tweet.shtml#comments] that article really bothered me. It kept referring to “copyrighting” something. You can’t “copyright” anything. You can register a copyright (at least in the United States), but something either is or isn’t protected by copyright. (Copyright isn’t copywrite, which is writing copy for advertising and marketing.) This goes along with using “trademark” as a verb. You brand a product or service; you register a trademark.
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And that brings us to the selfie taken by a nameless crested black macaque using a camera that he appropriated from a British wildlife photographer named David Slater. Slater went to Indonesia in 2011 at great expense, but the way he tells it, he was not a co-author of the macaque’s selfie. Rather, the macaque grabbed Slater’s camera and began taking thousands of selfies, a few of which turned out to be brilliant. (Surely this validates, at least in principle, the [http://en.wikipedia.org/wiki/Infinite_monkey_theorem] infinite monkey theorem.)

Actually, the photographs have been around since 2011, but Slater, the owner of the camera, recently got into a dispute with the Wikimedia Foundation when one of the photos was added to the Wikimedia Commons collection of public domain images. The Foundation refused to remove the photo and for good reason. It was made entirely by the macaque, without any contribution whatsoever from Slater other than being there. Slater wasn’t responsible for the framing, the angle, the lighting, the focus or the snap of the shutter. Here was Slater’s dubious factual rationale (and specious legal rationale) for why he should be considered the “author” of the photographs:
It was my artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken. [1]
This contradicts another, more recent, account that he apparently gave the Washington Post:
One day, he said, he set up a tripod and walked away for a few moments. When he returned, the monkeys had grabbed his camera and started snapping pictures. [2]
The latter sounds more like the truth. One can imagine Slater standing around, nervously hoping he would get his camera back in one piece. But even if Slater “predicted” that one of the macaque would take cute selfies — in fact, all but a handful of the thousands of images snapped were out of focus and otherwise unusable — neither the ownership of tools nor predictions will confer copyright ownership. Think of it this way: if someone stole your paintbrush that you cleverly left outside an art school and used it to paint a masterpiece, do you really think you could claim that you were the copyright owner?

The lack of a legitimate copyright claim hasn’t stopped Slater or his news agency, the Caters News Agency, from claiming that Slater owns the copyright. The shame of it is that the Huffington Post paid for use of the image, as if paying for an image in the public domain were a noble act. [3] When Slater tried to go after techdirt in 2011, techdirt correctly stood on its legal rights, [4] just as the Wikimedia Foundation has now done.

For better or worse, copyright law does not recognize works created by animals. Only people and corporations qualify. Of course this is bad news for elephants who make and sell their paintings, if only for peanuts.
End notes.
[1] See, https://www.techdirt.com/articles/20110714/16440915097/photographer-david-slater-claims-that-because-he-thought-monkeys-might-take-pictures-copyright-is-his.shtml
[2] See, http://www.washingtonpost.com/news/the-intersect/wp/2014/08/06/if-a-monkey-takes-a-selfie-in-the-forest-who-owns-the-copyright-no-one-says-wikimedia/
[3] http://www.huffingtonpost.com/2014/08/06/monkey-selfie_n_5654752.html
[4] See also, https://www.techdirt.com/articles/20110712/01182015052/monkeys-dont-do-fair-use-news-agency-tells-techdirt-to-remove-photos.shtml and https://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrights-to-news-agency.shtml