HORSE LAW: Does your horse have a copyright in its art?
There are several horses that are known for their artwork. Not paintings OF horses, but paintings BY horses. These horses hold paintbrushes in their teeth, and paint abstract artwork. One of the most famous horse/artist is Metro Meteor, a former race horse, which was not going to have a second career as a pleasure horse. However, it was discovered that Metro could hold a paintbrush in his teeth and create beautiful bold colorful abstract paintings. He literally saved his life with his painting! Metro’s paintings are sold for about $500 each, and proceeds go to other horses in need. Metro has his own social media account! Another horse, Cholla, has had his paintings shown in a solo art show in Venice, Italy. Other horses/artists, not as well known, are Justin (which had at least one painting sell for $2,500), and Buggs. Does YOUR horse have a similar talent? If so, does your horse hold a copyright in its artwork?
In a landmark copyright case before the U.S. Court of Appeals for the Ninth Judicial Circuit, sitting in San Francisco, there recently was oral argument on whether a monkey’s lawsuit against a wildlife photographer should proceed. In 2011, a macaque monkey took a self-portrait photograph or “selfie” with wildlife photographer David Slater’s equipment. The wildlife photographer traveled to Indonesia and attempted to take the monkeys’ photographs for days. The wildlife photographer ended up setting up photographic equipment so as to allow monkeys to photograph themselves while the wildlife photographer looked on from a hiding place. One of the monkeys saw her reflection in the camera lens, and took hilarious “selfies”. The monkey’s “selfies” went viral on the Internet, and were featured in a book called “Wildlife Personalities” published by Blurb, a San Francisco-based company. PETA (People for the Ethical Treatment of Animals) filed a lawsuit on behalf of Naruto, a macaque monkey that PETA claims was featured in the “selfies”. PETA sought a court order on behalf of the monkey that all proceeds from the photographs should be held in trust and paid to benefit Naruto. In 2014, the U.S. Copyright Office, ruled that works created by a non-human are NOT subject to copyright protection. In 2015, PETA, on behalf of the monkey, filed a lawsuit against the wildlife photographer. No. 15-cv-4324-WHO. In 2016, a federal district court judge dismissed the case, holding that the monkey cannot be the copyright owner of its “selfies”. PETA appealed on behalf of the monkey to the Ninth Circuit. Oral arguments before a three-judge panel of the Ninth Circuit Court of Appeals were heard on Wednesday, July 12, 2017. The court has not ruled yet, and the case remains pending.
Interestingly, the wildlife photographer, David Slater is now broke, and was unable to travel to San Francisco for oral argument of the appeal. (Slater lives in England.) Slater insists that PETA sued on behalf of the wrong monkey. Slater says that the monkey featured in the “selfies” was female. Naruto is male, and according to Slater is the wrong age. Slater (52 years old) says he is considering leaving photography altogether, to start a new career as a dog-walker or tennis teacher. If the lower court’s dismissal of the now famous “Monkey Selfie Lawsuit” is upheld on appeal, then unless the U.S. Congress amends the Copyright Act to allow for copyright protection for creative works by non-humans, your horse’s artwork would not be protected by copyright.
Mary B. Schultz is a partner in the law firm of Schultz &Associates LLP, www.sl-lawyers.com, 640 Cepi Dr., Suite A; Chesterfield (St. Louis), Missouri 63005, (636) 537-4645. Mary B. Schultz graduated from Northwestern University Law School in 1985, and has been practicing primarily in Missouri ever since. Mary B. Schultz is admitted to practice in Missouri and Illinois.
This column is intended to provide general information only. It does not constitute, nor should be relied upon, as legal advice or a legal opinion relating to specific facts or circumstances.
Reproduction of all or any part of this column is permitted, provided credit is given to Mary B. Schultz.
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