MONKEY SEE, MONKEY DO

We will likely never know whether a monkey, put in a room with typewriter and given sufficient time, will actually type out Hamlet, but we do know now that a monkey given a camera can take a pretty good selfie. Wildlife photographer David Slater found this out when, during a shoot in Indonesia, a crested black macaque stole his camera and, apparently among other random exposures, captured a winning likeness of himself. The photo is now the subject of a copyright dispute between Slater, who claims ownership of the copyright, and Wikimedia Commons, which believes it belongs in the public domain. Out of respect for Slater’s claim, which I do not find frivolous, I will not reproduce the selfie, but you have got to check it out here. It really should put to rest any doubts about the theory of evolution.

Press accounts suggest that Slater is arguing that he owns the copyright because it was his camera, and Wikimedia is arguing that because the photo was taken by a non-human, there can be no “author.”  I suspect the actual arguments are more nuanced, because both of these positions seem like misfires to me, at least under U.S. copyright law.

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APPROPRIATION AND TRANSFORMATION

Patrick Cariou, a professional photographer, spent six years among the Rastafarians of Jamaica. and in 20oo he published a book of  portrait and landscape photographs taken during this sojourn.  Yes Rasta sold modestly, earning Cariou about $8,000 in royalties from sales of about 5700 copies. Four of those copies were purchased by appropriation artist Richard Prince. Prince, without permission from Cariou, created more than 30 large-scale art works, called the “Canal Zone” series, which incorporated photographs taken from Yes Rasta, altering them to varying degrees, for example:

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Prince’s Canal Zone series was exhibited at the Gagosian Gallery in 2008.  As the United States Court of Appeals for the Second Circuit noted, with evident awe, in its recent opinion in Cariou v. Prince, the dinner hosted by the Gagosian in association with the show was attended by such A-List celebrities as Jay-Z, Beyoncé, Jeff Koons, Tom Brady, Graydon Carter, Robert de Niro, and Brangelina. Prince sold eight works for a total of $10,480,000 and exchanged seven others for works by Larry Rivers and Richard Serra.  Can life possibly be this unfair?

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SID & JOHNNY

Dennis Morris was a photographer who recorded the Sex Pistols’ legendary 1977 tours, capturing at least one iconic on-stage image of Johnny Rotten and Sid Vicious.  Russell Young is an artist who found that image on the internet and used it, without Morris’s permission, in a series of Warhol-like pieces.  Morris v. Young, decided yesterday by Judge Gee of the U.S. District Court in Los Angeles, is but the latest installment in our continuing series of not-easily-rationalized or reconciled fair use decisions.

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