Tattoo Settlement

ST. LOUIS. It's always bitter sweet when a case settles. On the one hand, it's a good thing that costly, lengthy and probably hugely draining litigation has been avoided. However, on the other hand, we lawyers are robbed of what could have been a valuable legal precedent. And often it's precisely those cases capable of clarifying a previously unsettled area of law that are settled out of court.

We had predicted that this was likely to happen in tattoo artist Whitmill's claim against Warner Bros. over the copy of his Tyson tattoo featured in the film The Hangover II. And indeed a few days after the parties met with a mediator as Judge Perry ordered them to, a settlement had been reached. We'll never know what the outcome would have been (at the time I argued that Whitmill had a pretty strong case),  "Judge Perry made it clear in her comments to the lawyers [when she rejected plaintiff injunctive relief] that she was sympathetic to Mr. Whitmill's argument, noting that he had a “strong likelihood of prevailing on the merits for copyright infringement” and that most of the arguments put forward by Warner Brothers were “just silly.”" No comments as to the terms of the settlement of course.

Monkey Art

We're all clear that under the U.S. Copyright Code, the author of an original work has exclusive rights over the copyrighted work. But what if the author is not a living person but rather a monkey? The question has arisen not once but twice in the past eighteen months: originally in the context of a video that was entirely filmed by chimpanzees and more recently when a monkey in Indonesia snatched nature photographer David Slater's camera and started taking photographs. Two of those photographs were found to be subject to copyright notices claiming that not the monkey, not Slater but Caters News Agency held the copyright. The only way the agency could claim to have such rights is if there had been an assignment (a legal transfer of rights) of the copyrights by the author of the original work to the agency. But there could not have been any such assignment since no one owns the copyright - neither the monkey nor Slater (who presumably "submitted the photos to the agency"). Why? Because monkeys are not afforded rights under the Copyright Code and because Slater did not take the photos himself. The photos, I would argue, are therefore not protected by copyright.