Battle Over Monkey Photos Begins

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When I wrote last week about the legal issues raised by picture-taking monkeys, I was about to email the agency that appeared to be claiming rights in those photos to ask for comment, but held off because I suspected its comment might be to tell me to quit using the photos. I didn't think it actually had the rights, and did think my using the images would be "fair use," but I wasn't ready to have that fight yet. Now I'm glad I waited, because it means at least one other site is also involved on the same side.

The technology site Techdirt also mentioned the story last week, in a post by Mike Masnick, and also used the photos. Sure enough, on Monday it got a notice from the Caters News Agency asking it to remove the photos immediately. It wasn't an official takedown notice under the Digital Millennium Copyright Act, just a note (and a relatively friendly note) asking for the removal. Since Techdirt had specifically written about the copyright questions, too, it was surprised that the agency didn't address those questions at all. So it wrote back to ask about the basis for the claim, and to express its view that it had been engaged in "news reporting" on the issue, which is a key purpose of fair use under the Copyright Act. Now it's on, I thought, and was eager to see the response.

The response was this: "[R]egardless of the issue of who does and doesn't own the copyright – it is 100% clear that the copyright owner is not yourself….On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs."

Well, that's almost disappointing. As Masnick points out in response – and I encourage you to read that post, which is very good – you don't get to issue a takedown notice if you aren't the owner, so ownership is in fact an important question here that the agency doesn't address. Also – and this is regardless of ownership – the use is still fair use and so is not infringing. Based on that analysis, Techdirt is refusing to take down the photos.

Masnick said he had consulted "no fewer than four lawyers" before responding, and since one or more of them were presumably intellectual-property lawyers (which I am not), this makes me a little more confident about my analysis. I've been working on a more detailed version of that, so I'll finish that up and get it posted this morning.

So far, no one has heard from the monkeys or any representative of said monkeys.