United States: Are You Sure This Isn't About Copyright? Chicken Sandwiches, Monkey Selfies And The Boundaries Of Copyright Law

Last Updated: October 7 2015
Article by David A. Kluft

Last week, a wild crested macaque named Naruto (but really People for the Ethical Treatment of Animals) filed a copyright infringement lawsuit against photographer David John Slater in the Northern District of California. The suit alleges that Slater infringed Naruto's copyright in the famous " monkey selfies" (taken by Naruto with Slater's camera). The complaint requests that the Court order Slater to disgorge any profits he has realized from the distribution of the images and establish a trust, administered by PETA, to "be used solely for the benefit of Naruto, his community of crested macaques, and preservation of their habitat."

How should we characterize this lawsuit? Some will call it a frivolous publicity stunt, others an empty but well-intended gesture, and still others a good faith revival of the old " do trees have standing" debate. But it is also an extreme example of another trend: the increasing use – or attempted use – of copyright law to solve problems not traditionally seen as copyright problems. Here, PETA's real (laudable) concern is not protecting Naruto's intellectual property, but his habitat. Whether or not copyright law will provide the remedy sought, it is the vehicle being used to put the matter before a judge.

Copyright as Reputation Management Tool

What are other examples of this trend? Most notably, copyright law has become a popular substitute for defamation claims rendered impotent by the Communications Decency Act (CDA). Section 230 of the CDA basically eliminated secondary liability for online defamation. So, as a practical matter, even if you win a defamation suit against the poster of defamatory material, you still may be unable to force the website hosting the material to take it down. As we've previously reported, this phenomenon has driven victims of alleged online defamation to copyright law, on the theory that if they can obtain the copyright to the defamatory material (for example, by contract), they can issue a DMCA takedown notice without interference from that pesky Section 230.

Does this use of copyright as an online reputation management tool work? Not usually. For example, the Eleventh Circuit recently affirmed summary judgment against a copyright claim brought by real estate mogul Raanan Katz against one of his former commercial tenants. The tenant had established a website critical of Katz, which included embarrassingly "ugly" newspaper photographs. Katz obtained the copyright to the photographs, and then tried to use the DMCA to have the website shut down. The Eleventh Circuit held that, irrespective of the ownership of the photographs, "every reasonable fact finder would conclude" that their inclusion on the website was fair use.

Copyright as Fatwa Protection

Meanwhile, others have tried to use copyright as a cure for a range of different ills. Politicians have repositioned  campaign speech disputes as copyright claims. Litigants have tried using copyright law to keep evidence from fact finders when other evidentiary objections fail.  Government bodies have used copyright law to limit their obligations to answer public record requests.

The most famous example of this trend was Garcia v. Google. Actress Cindy Lee Garcia was tricked into appearing in an anti-Muslim film posted on YouTube, which resulted in her receiving death threats and even a fatwa from an Egyptian cleric. Garcia's various claims against the filmmakers (e.g., fraud), even if successful, would not have resulted in the remedy she felt necessary for her safety: removal of the film from YouTube. But if she owned a copyright in the film, she could use the DMCA to take it down. So, Garcia's lawyers argued that she possessed a separate protectable copyright in her performance in the film (apart from the copyright in the film itself) which gave her standing to issue a DMCA takedown notice. Although ultimately vacated by the Ninth Circuit sitting en banc, Judge Alex Kozinski initially accepted Garcia's novel argument and ordered YouTube to remove the video. Copyright law temporarily became her bodyguard against the fatwa. Physical security is not something copyright law was designed to accomplish, but Judge Kozinski felt it was "best to err on the side of life."

In Defense of Chicken Sandwiches

And that brings us to the chicken sandwich. While working at Church's Chicken in Puerto Rico, Norberto Colón created the recipe for the "Pechu Sandwich," which allegedly led to other "Pechu" menu items and some $369,000,000 in revenue. Colón felt he had not been properly compensated for his contribution, and many years later decided to sue. But the First Circuit held, in Colón v. South American Restaurants, that Mr. Colon could not copyright the recipe or name of the chicken sandwich.

Many derided this case as ridiculous, but here is why it's interesting, at least for present purposes: Colón never brought a copyright claim. His complaint included other counts related to the attribution of the sandwich idea, but it was the Magistrate Judge who, in reviewing the defendant's motion to dismiss, construed Colón's complaint as if it had included a copyright count, and then dismissed that hypothetical copyright count. By the time the case reached the First Circuit, copyright was its centerpiece. In fairness to the Magistrate, he didn't start it. The parties began making oblique references to copyright sometime after the complaint was filed. But still, such incidentally articulated issues rarely make it all the way to the top of an appellate opinion.

So what is going on here? Somehow, the perception of the potential scope of copyright law has expanded to the point where it is worth asking "Are you sure this isn't a copyright case?" just in case. The cause of this trend likely lies somewhere within the delta of the CDA, which has closed off other avenues of relief for online wrongs; the DMCA, which is often perceived as the only avenue left open; and a general absence of moral rights. But it's more than that: the internet itself is teaching us to see even abstract concepts as tangible expression. Reputation, the abstracted opinion of the community, is perceived to be reducible to a printable YELP rating. A cause like the protection of Naruto's habitat only becomes real to many when it is expressed as a tangible meme (a word my spellcheck no longer underlines). When we reduce intangible concepts to tangible expression, it's no wonder that copyright law, the law of tangible expression, becomes more relevant. Does the off-line chicken sandwich really fit this model? Maybe not, but the fact that the Court thought it worthwhile addressing copyright at all is telling of how expectations about the potential scope of copyright law have expanded. Even if those expectation are wrong.

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