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Month in Review (August), Part 2

By Martha Nimmer

Monkeying Around

If a monkey takes a selfie, who owns it? That is the question hounding British photographer David Slater, who is currently embroiled in a legal dispute with Wikimedia Commons over the ownership of a selfie taken back in 2011 by a crested black macaque (Macaca nigra) in an Indonesian forest. Slater spent three days in 2011 following the crested black macaques, when one day, after setting up his tripod and leaving it, the monkeys took his camera and started taking photos. When he returned, he realized that the monkeys had been snapping photos of themselves: a star--and a monkey selfie--were born. The selfies taken by the macaques quickly spread through the media. Eventually, one of the selfies appeared on Wikipedia, and then on Wikimedia Commons, which hosts images that are in the public domain. According to the Washington Post, Slater asked Wikimedia to remove the photo in 2012; the image was taken down, but it later appeared again, uploaded by another user. This time, the photo remained on Wikimedia.

Slater maintains that he owns the copyright to the monkey selfies, and "[t]he fact that they have been, essentially, distributed for free on the Internet through the Wikimedia Commons Web site has cost him untold amounts of money," explains the Washington Post. "This is ruining my business," Slater lamented. "If it was a normal photograph and I had claimed I had taken it, I would potentially be a lot richer than I am." Last month, Wikimedia revealed in its first ever transparency report just why it had denied Slater's removal request: essentially, Wikimedia stated, Slater was arguing that the person who took the photo should own the copyright in the photo. We know, however, that he did not take the photo; in fact, no human did. "Monkeys don't own copyrights," Wikimedia Foundation's Chief Communications Officer Katherine Maher said. "What we found is that U.S. copyright law says that works that originate from a non-human source can't claim copyright." For Slater to make a successful copyright claim, Maher explained, he would have to make "substantial changes" to the image in question--not just mere "cropping, color correcting and other cosmetic adjustments." Absent those alterations, Slater would have no basis for claiming a copyright in the selfie. Consequently, Wikimedia concluded, "if the photographer doesn't have copyright and the monkey doesn't have copyright then there's no one to bestow the copyright upon," Maher stated, and therefore it has remained on the website.

Slater remains determined, however, to find a way to assert his rights in the now famous monkey selfie. The photographer says that he is currently seeking legal counsel in the United States, where the Wikimedia Foundation is based, and in Britain.

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/

http://www.abajournal.com/mobile/article/who_owns_the_copyright_to_macaques_selfie_wikimedia_denies_photogs_take_dow/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Another Legal Headache for Lindsay Lohan?

Take-Two Interactive Software, Inc., the makers of wildly popular video game series Grand Theft Auto (GTA), says that Lindsay Lohan sued the company earlier this summer as a way to "get attention." The former "Mean Girls" star claimed that Take-Two Interactive and subsidiary Rockstar Games used her voice and likeness when creating blonde, bikini-clad GTA character Lacey Jonas.

In response to Lohan's suit, Take-Two and Rockstar Games filed papers in Manhattan federal court, calling the actress' case "frivolous" and a ploy "for publicity purposes." The defendants are seeking a dismissal of the suit, and asking the court to make Lohan pay the company's legal fees.

http://bigstory.ap.org/article/video-game-makers-lohan-sued-us-attention

Fighting Fakes

Fashion powerhouses Gucci, Balenciaga, Yves Saint Laurent and others have Alibaba and its founder, Jack Ma, in their crosshairs. In July, the companies went to federal court in Manhattan and accused the Chinese e-commerce giant of making billions of dollars "by helping 'an army of counterfeiters' sell fake products." The lawsuit, filed on July 10th, was unsealed on July 24th, and names Alibaba Group Holding and nine Alibaba affiliates as the lead defendants. Nineteen other online merchants, all based in either China or Hong Kong, are also included as defendants.

In the 147-page lawsuit, the plaintiffs claim that Alibaba and its subsidiaries "facilitate and encourage the sale of an enormous number of counterfeit products." "The Internet has opened the door for unauthorized merchants to reach a wide range of consumers in their efforts to sell counterfeit versions of the plaintiffs' products, which bear the plaintiffs' marks even though they are not manufactured, licensed, or approved by plaintiffs ('counterfeit products')," the complaint details. It continues on to say that "the sellers of such products not only copy the designs, patterns, and color schemes associated with plaintiffs' products, but also expressly use plaintiffs' marks in their advertising and marketing and on the counterfeit products themselves." The plaintiffs also accuse Alibaba and its affiliated companies of actively "encouraging" online merchants' infringement, by providing support services and a marketplace for the knock-off goods. Additionally, the e-retailer also offers credit card processing and shipping services, and helps merchants come up with and buy keywords that attract customers who are looking for authentic couture items.

Despite numerous investigations into and complaints about the advertising and sale of knock-off goods on its e-commerce platforms, Alibaba has done "little" to stop counterfeiters from selling fake merchandise, the lawsuit claims. Additionally, although Alibaba has said that it monitors and prevents sellers of counterfeit products from accessing and using the site, Alibaba has refused "to ban such merchants permanently or prevent them from offering counterfeit goods for sale," the plaintiffs state. Gucci, along with its co-plaintiffs, seek an injunction and punitive damages for trademark infringement, unfair competition and RICO violations.

Founded in 1999, Alibaba is an online-based retailer, like Amazon, which "provides online platforms for the sale and purchase of products." Alibaba's initial public offering (IPO) in the United States is expected to launch sometime this month, and could be worth as much as $200 billion, according to some analysts.

http://www.entlawdigest.com/2014/08/20/3277.htm

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This page contains a single entry from the blog posted on September 3, 2014 1:38 PM.

The previous post in this blog was Studios and Guilds Attempt to Adapt to Changing Media Landscape With New Residual Agreements.

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