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Monkey’s business?

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on June 21, 2018.


Cody Cooper

Cody Cooper is a Patent Attorney in the Intellectual Property Practice Group and represents individuals and companies in a wide range of intellectual property, patent, trademark and copyright matters. His practice also includes commercial litigation.

By Phillips Murrah Attorney Cody J. Cooper

In 2011, a nature photographer in an Indonesian nature reserve left his camera unattended in the forest. A 7-year-old crested macaque monkey named Naruto, perhaps in an effort to increase its Instagram followers, decided to take several selfies using the camera. The photographer then, in 2014, published the monkey’s photographs in a book for sale online.

People for the Ethical Treatment of Animals sued as next friend of Naruto seeking to enforce Naruto’s copyrights to the photographs and to recover profits from the sale of the book.

The question became whether Naruto had statutory standing to claim copyright infringement on what became referred to as Monkey Selfies. According to the 9th Circuit Court of Appeals, the answer is no.

Humans, unlike monkeys, have a constitutional right to protect their works and inventions under Clause 8 of Section 8 contained within Article I of the Constitution, and those rights are further set out in the United States Copyright Act. These rights include the right to use, distribute, sell, duplicate, display and create derivative works. These rights are most commonly associated with books, magazines, plays, paintings and photographs, but can also apply to things like architecture and even graffiti.

The 9th Circuit, in Naruto, et al., v. Slater, et al., No. 16-15469 (9th Cir. April 23, 2018) affirmed the trial court’s ruling that, despite the fact that the monkey had standing under Article III of the U.S. Constitution, Naruto did not have standing under the Copyright Act to bring the lawsuit. In other words, monkeys (or any other animal) cannot bring copyright infringement claims because the Copyright Act does not expressly authorize it. So, Naruto’s case was dismissed.

Citing Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) as precedent, the 9th Circuit Court of Appeals held that “if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.”

If Naruto teaches nothing else, it should be to remember that if you see your pet attempting to take a selfie with an abandoned camera, be sure to take the picture yourself, in case it becomes famous. Someone will be making money on it, and it might as well be you.

Cody J. Cooper is a patent attorney with the Oklahoma City law firm of Phillips Murrah.

Who gets Grandma’s Twitter? Ownership, rights to Internet-based materials

Clay Ketter

Clayton D. Ketter is a litigator whose practice involves a wide range of business litigation including financial restructurings and bankruptcy matters.

By Clay Ketter
Guest Column in The Journal Record
Originally published Sept. 3, 2014

The amount of material we store in the so-called cloud has seen amazing growth. Be it a Web-based email account, iTunes music collection, or a blog dedicated to humorous pictures of cats, each of us has information we value that is solely accessible through the Internet.

Issues of ownership and rights to these Internet-based materials can be tricky. What happens to these rights once a person dies? In the past, family members may have wondered who would inherit the family silver. Now, issues may arise as to not only who gets Grandma’s Twitter account, but whether the account is even transferable.

Oklahoma is a pioneer as to these issues. A statute in effect since 2010 gives an executor the power to take control over social networking, blogging, instant messaging or email accounts following the owner’s death. Oklahoma’s statute, though, predates the explosion of cloud computing and leaves open issues such as how or if digital assets can be conveyed.

Delaware recently became the first state to pass comprehensive legislation aimed at addressing what happens to digital assets. House Bill 345 provides that, upon one’s death, digital assets are to be treated the same as physical assets and gives an executor broad authority to take control of and transfer them. The law applies not just to Web-based accounts, but to video, images, and other digital materials.

gravestone-failwhaleHowever, the Delaware law states that it is subject to certain provisions contained in end user license agreements. Signing up to a new digital account typically requires agreeing to a user agreement. Given the length and complexity of these agreements, it’s a fair assumption that people often agree to the terms without having read the actual agreement. If one were to read the agreement, they would find that typically they are not acquiring the actual digital asset, but instead a limited license to use the asset. For example, when you purchase a song on iTunes, you are actually buying a license.

Therefore, all you effectively end up owning is the personal right to listen to the song. Even under the Delaware statute, upon one’s death, that limited license would prevent the song from being transferred.

You may want to think twice before amending your will to leave a relative your iTunes library. That is, unless you dislike them.

Phillips Murrah welcomes two attorneys

SMR, SJE

Scott M. Rayburn and Sidney J. Earnheart

OKLAHOMA CITY – Scott M. Rayburn has joined Phillips Murrah’s Transactional Practice Group as an of counsel attorney.

Rayburn’s practice will be focused on business transactions, entity formation and structure, and capital raising and formation.

He will also be representing clients in negotiating and structuring acquisitions and divestitures, private equity financing, contractual matters and other issues faced in general business and corporate affairs.

For 12 years prior to joining Phillips Murrah, Rayburn was General Counsel at Canaan Resources, an Oklahoma City based natural gas company.

Phillips Murrah also added Sidney J. Earnheart to the firm’s Energy & Natural Resources team as an associate attorney.

Earnheart represents both privately-owned and public companies in a wide variety of oil and gas matters, with a strong emphasis on oil and gas title examination.

Prior to joining Phillips Murrah, Earnheart worked as an attorney in Houston, Texas for a law firm that specializes in matters related to oil and gas.