Artists or Vandals? Why Graffiti Art Receives Less Protection than Other Forms of Art and How Federal Law Should be Changed to Protect Graffiti Artists
By Annamaria Anselmo
[Editor’s Note: Ms. Anselmo is a third-year law student at Fordham University. She is a Notes and Articles Editor of the Intellectual Property Law Journal. A version of this article was submitted as part of the Fall 2015 Art Law Course taught by Leila Amineddoleh at Fordham.]
Graffiti has existed for centuries. The meaning of the word “graffiti” has evolved to denote vandalism, defacement, and destruction of property, and has long been associated with gangs, crime, and general deterioration. The dictionary definition of Graffiti is “unauthorized writing or drawing on a public surface.” In current day U.S. law, anti-graffiti legislation discourages and penalizes graffiti artists.
Despite the criminal status and unsavory reputation of graffiti, art historians and others in the art world classify it as artistic expression. Street artist Banksy, for example, has garnered considerable acclaim for his graffiti works. Some art critics credit Banksy’s universal fame for converting graffiti art from vandalism to highly coveted art pieces. As a result of graffiti art’s rise in stature from a criminal act to art, CNN journalist Max Foster coined the term “the Banksy effect.” The Banksy effect demonstrates how Banksy has propelled public interest in street art. The increased] public interest in graffiti art, has led artists to advocate for more rights and protections.
This article analyzes whether current U.S. intellectual property law can protect street art from being copied, removed, sold, or destroyed without the street artist’s consent and proposes that copyright law should expand to specifically include graffiti law to ensure protection of outdoor street art, so as to avoid any confusion about its status as protectable art. In addition, the Visual Artists Rights Act of 1900 definition of “recognized stature” should be more clearly expressed to protect graffiti art.
I. Copyright Law Discussion and Analysis
This section (A) gives a general background of copyright law; (B) gives examples of recent copyright cases involving graffiti art issues; and (C) argues that copyright law fails to provide adequate protection for graffiti artists.
A. Copyright Background
Copyright law finds its origins in the U.S. Constitution, which provides that, “Congress shall have Power . . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to these powers, Congress passed the Copyright Act of 1976 (“Copyright Act”), originally protecting an author for his lifetime plus fifty years. In 1998, Congress amended the Copyright Act to further prolong the duration of copyright protection for an extra twenty years. This extended the protection to the life of the author plus seventy year—“the longest blanket extension since the Nation’s Founding.”
Under the Copyright Act, protection is offered to “original works of authorship fixed in any tangible medium of expression.” The types of works protected under the Act are: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures; sound recordings; and architectural works. Fixation in a tangible medium of expression requires embodiment in a copy that is sufficiently stable to permit it to be reproduced or communicated for more than a transitory period of time. Originality entails independent creation plus just a modicum of creativity. To prove infringement, the copyright owner must demonstrate that he owns a valid copyright and that there was copying of essential elements of the work that are original.
B. Copyright Infringement Cases
In the last few years, a number of copyright infringement cases have emerged in which fashion designers have brazenly infringed street artists’ designs. Although designers are ultimately punished in some of these cases, fashion designers project the attitude that they can escape rebuke from the law. In August 2014, for example, street artists Jason Williams, Victor Chapa, and Jeffrey Rubin alleged that Roberto Cavalli infringed their rights by creating a clothing and accessories line—the Just Cavalli Spring/Summer 2014 Collection—that identically copied their graffiti art. The artists sued Cavalli for copyright infringement, unfair competition, and violations of the Lanham Act. The artists centered their argument on the fact that Cavalli’s line and their art were indistinguishable, which was primarily evidenced by the appearance of the artists’ signatures on Cavalli’s pieces. The artists further argued that Cavalli’s misappropriation was intentional because Cavalli superimposed the “Just Cavalli” name, in spray-paint style, as if it were part of the original work, creating the false impression that Roberto Cavalli was the artist.
Cavalli countered that the artists failed to identify any specific elements that Cavalli copied and used in its collection. Judge Andre Birotte of the Central District of California pointed out that because Cavalli had used the artists’ signatures on his clothing and accessories line, Cavalli misrepresented the origin of the goods. While the parties reached a settlement agreement on January 6, 2016, this case illustrates the problem plaguing street artists: the law is not clearly written.
Similarly, in July 2014, Miami street artist David Anasagasti sued American Eagle Outfitters for copyright infringement. According to Anasagasti’s complaint, American Eagle used his Miami “Ocean Grown” graffiti mural in a global advertising campaign without permission, compensation, or attribution. The photographs of Anasagasti’s street art were also featured on the American Eagle website, social media pages, a billboard in New York City, and store displays from Tokyo to Panama, all without Anasagasti’s consent. The clothing chain reportedly employed artists to replicate one of Anasagasti’s murals for an eight-foot display at a store opening in Medellín, Colombia, where American Eagle planted its name on the display, “essentially incorporating Mr. Anasagasti’s artwork into AEO’s own brand identity.”
Anasagasti also emphasized in his complaint that in one image from American Eagle’s campaign, a model is posed in front of Anasagasti’s mural holding a can of spray paint, implying that the model is responsible for creating Anasagasti’s mural behind him. Anasagasti’s attorneys allegedly contacted American Eagle about the use of his work in early May 2014, but the company continued using the art in its advertising materials through the middle of July. By December 2014, the parties decided to settle the case for an undisclosed amount.
In August 2015, Brooklyn graffiti artist Rime filed a lawsuit in federal court in California against designer Jeremy Scott and his fashion house Moschino, claiming that Moschino copied his mural titled “Vandal Eyes.” The colors, patterns, and even Rime’s signature pair of cartoon eyes all identically match a suit that Scott himself wore on the red carpet of the Met Gala. At the Gala, Scott and singer Katy Perry, arrived in a spray-painted Rolls Royce, and carried Moschino-branded cans of fake spray paint during the event as if to give the false impression that Moschino was responsible for graffiti work.
Moschino, as in the Cavalli case, included Rime’s name and fake signature on the clothing, in advertisements, and in media photographs. In addition to misappropriating Rime’s signature, Moschino and Jeremy Scott painted the Moschino and Jeremy Scott brand names in spray-paint style as if they were part of the original work. Anasagasti’s case against American Eagle mirrors the Cavalli and the Moschino cases in that the clothing companies not only used the street art in their clothing lines and advertising campaigns, but also gave the impression to the public that they were the creative minds behind the street art. Cavalli’s and Moschino’s teams also failed to remove the street artists’ own signatures from the clothing and accessories designs.
In August 2014, street artist Maya Hayuk filed a lawsuit against singer Sara Bareilles for the use of a New York City mural, entitled “Chem Trails NYC,” as the backdrop for the singer’s advertisements. Hayuk claimed her artwork was used on promotional material for the singer’s “Little Black Dress” concert tour, as well as on Bareilles’ album, “The Blessed Unrest,” without authorization or compensation. The complaint alleged that around May 2014, photographs of Hayuk’s mural were used as the principal channel for publicizing and promoting Bareilles’ Little Black Dress tour. The defendants—which included Bareilles, Sony, Paradigm Talent Agency, and Bill Young Productions—displayed the photographs of the mural on their respective websites and social media pages, including Facebook and Twitter. Subsequent to this display of the Chem Trails NYC mural, a promotional video featured images of the mural behind moving images of Bareilles singing and dancing. This case was voluntarily dismissed with prejudice by and against Hayuk on January 28, 2015.
The deliberate use of Hayuk’s mural without regard for Hayuk’s rights as the artist reveals the indifference toward graffiti art and supports the exploitation of graffiti by corporations and others. Instead of revering street art as the main display, graffiti is relegated to shared property for the general, unrestricted use by the public. Because it is not on display in museums, people often forget that graffiti may be copyright protected. While all of these cases settled, leaving the law untested in this area, it can be difficult for street artists to assert their legal rights against infringers.
C. Why current U.S. law seems to allow for deliberate copyright infringement of street art
Many fashion designers claim they have been inspired by art, even graffiti art. For example, in the Williams v. Cavalli case, Cavalli has claimed it did not “copy” the artists’ mural, but was simply “inspired” by the graffiti. Many artists and designers are influenced by their predecessors and contemporaries making it difficult to allege copyright infringement in a work of art — adopting a style or technique likely does not establish any type of copyright infringement.
In Williams v. Bridgeport Music Inc., however, Marvin Gaye’s descendants sued Pharrell Williams and Robin Thicke, claiming that they infringed on Gaye’s songs with their hit tune, “Blurred Lines.” The jury ruled in favor of the Gaye estate because the “feels” of the songs were similar. The songs in question, while potentially similar to the ordinary listener, were not identical. Conversely, street art cases have shown direct, literal, and identical copying with even signatures transferred to the infringing works. Thus, as exhibited by Williams v. Bridgeport Music Inc., there seems to be stronger protection for copyright owners of musical compilations and recordings versus copyright owners of street art.
Of additional concern for graffiti artists is the fact that there is no criminal prosecution of these cases. According to Jim Crowne, the Director of Legal Affairs at the American Intellectual Property Law Organization (“AIPLA”), the first obstacle that many artists, who believe that their designs have been plagiarized, face is that they may not have registered the copyright on the work in question. Under U.S. common law, any original work of authorship, including artistic works, is automatically copyrighted from the moment it is created. However, the average cost of pursuing a copyright infringement suit with damages less than $1 million can reach as high as $350,000. Consequently, infringers count independent artists not registering their works and the high legal costs of enforcing be a deterrent. Even if an artist does have an existing registered copyright for their work, artists have the difficult burden to prove infringement, which can be personally, mentally, and emotionally exhausting.
II. VARA Discussion and Analysis
This section (A) gives a general background of the Visual Artists Rights Act of 1900; (B) provides a discussion of cases decided under the Act; and (C) argues that the Act fails to provide adequate protection of Graffiti art.
A. VARA Background
Before Visual Artists Rights Act of 1900 (VARA) was implemented in the United States, some courts were reluctant to find that artists have certain moral rights. In Crimi v. Rutgers, an artist sued the owner of a building for destroying the artist’s mural, contending that the owner violated public policy and breached his moral rights. The Supreme Court of New York, however, reasoned that moral rights were not recognized in the United States. As a result, the Crimi court refused to award damages to the artist.
In 1990, Congress enacted VARA to legally establish and codify artists’ moral rights, complying with the Berne Convention. To summarize, VARA grants the moral rights of attribution and integrity to authors of works of visual art that are of recognized stature. The right of attribution enables an artist to claim authorship of his work and repudiate authorship if his work has been modified or injured in a way that would damage his reputation. The right of integrity confers an artist the right to prevent distortion, mutilation, or alteration of his work of recognized stature that would harm the artist’s standing.
A “work of visual art” is defined as a “painting, drawing, print, or sculpture” that is uniquely original or limited to prints of 200 or fewer that are signed and consecutively numbered by the author. Only works of “recognized stature” are protected by VARA. Determining whether a work is of recognized stature requires the courts to use common sense and generally accepted standards of the artistic community.
B. VARA Cases
In November 2013, a number of street artists sued the property owners of a building in Queens that became known as “5Pointz,” a “mecca” of graffiti and street art. In the early 1990s, the exterior walls of the building were a hub for offensive graffiti. In order to combat the progress of this repugnant graffiti, the owner of the building, Gerald Wolkoff, approached artist Jonathan Cohen to curate works that would be painted on the walls. Although never put in writing, the agreement between Wolkoff and Cohen allowed Cohen to select who would paint. However, despite the parties’ understanding, Wolkoff made plans to demolish the graffiti in order to accommodate his housing project.
The artists filed for a preliminary injunction against the owners of the building; however, the court ultimately denied the artists’ motion because, for the purposes of a preliminary injunction, they had not established that their work was of recognized stature. To determine what recognized stature means, experts from both parties were called. Wolkoff’s expert acknowledged that the art at 5Pointz had achieved widespread recognition as a tourist attraction, but did not believe that would satisfy VARA’s recognition standard, unless visitors or tourists came “to see a particular work of art.” However, the artists’ expert concluded that a work of art that was exhibited in places where a significant number of people could gather would be sufficient to fulfill the recognized stature criterion.
The contention between these two experts lucidly expounds the difficulty that exists in employing the recognized stature standard. Unless art experts are able to agree on the application of this standard, artists will continue to suffer as a result of ambiguous legislative drafting. Because VARA fails to clearly explain what recognized stature means, experts and courts alike are unable to fairly or consistently apply it.
Experts and courts continue to vacillate on the meaning of recognized stature even though in Carter v. Helmsley-Spear, Inc., the court attempted to provide clarification of the standard. In Carter, artists John Carter, John Swing, and John Veronis created art and sculpture work for a commercial building that was altered when new management took over the property. The Carter court envisioned a two-part test to determine recognized stature: (1) whether the work is viewed as “meritorious” and (2) whether the stature is recognized by experts and members of the artistic community. Furthermore, the court reasoned that the trier of fact does not have to personally find the art aesthetically pleasing, or masterfully crafted, in order to find that it is of recognized stature. Despite the additional clarification that the Carter court provides, courts are still unclear about what recognized stature means and how to apply this standard.
More recently, in April 2014, artist Victor Henderson filed a lawsuit under VARA over the destruction of a mural known as the “Brooks Avenue Painting,” which he co-created in 1969 as part of the artist group, the “Los Angeles Fine Art Squad.” According to Henderson’s complaint against building-owner Ralph Ziman, the destruction of the mural “had a deep impact on other artists and was a mural of major historical significance.” Henderson also alleged that around 2013, Ziman ordered that “Brooks Avenue Painting” be destroyed as part of a plan to then reinstall the mural with a painting of a band, The Doors, in front of the mural.
The mural was water-blasted with no notice to Henderson about the destruction so that he might photograph or memorialize the mural. Henderson maintained that his street mural was of a distinguished stature in the art community based on the mural’s acknowledgement on the website of the Los Angeles Mural Conservancy and because neighbors are able to identify the artist. While Henderson had strong evidence demonstrating that his mural was of recognized stature, Henderson voluntarily dismissed the case, so the opportunity to clarify the definition of recognized stature was lost.
C. Why VARA seems to allow for the destruction of graffiti art
VARA suffers from a number of flaws that impairs the rights of graffiti artists. As demonstrated above in the previous subsection, the recognized stature standard required by VARA is ambiguous and unclear. If experts in the art community are unable to come to a clear understanding about the definition of recognized stature, then there is no security or predictability, especially when graffiti art is already discredited as an inferior art form. Thus, since the courts have not genuinely or adequately addressed the recognized stature standard as applied to graffiti art, there is no assurance that graffiti artists qualify for VARA protection because their works are largely deemed not worthy of recognized stature. Instead, the public has the impression that graffiti belongs in crime-ridden areas or on subways.
Likewise, street artists suffer because VARA does not oblige owners to keep art on their walls indefinitely. VARA only requires building owners to give artists 90 days’ notice of their intentions to destroy the art, so the artists can take it down themselves. However, the owners frequently do not give notice as demonstrated by the Henderson case. Additionally, VARA still places the burden of removing the art on the artist, which is an added monetary and time-consuming cost. Once an artist receives the 90-day notice, it is possible and likely that the artist cannot afford to remove the art himself. Thus, VARA seems to favor prominent, wealthy artists, not the burgeoning street artist whose only opportunity to display his artwork is to exhibit it outdoors.
III Proposal and Conclusion
There seems to be a total disregard and disrespect for graffiti art. People walk right past street murals without much thought for the workmanship or creativity required for such intricate art. Because these murals are featured outside on the streets, that should not downgrade their ability to be protected. Thus, since public perception identifies graffiti art as not worthy of basic protections, copyright law should be clearer about its thick protection of graffiti art. For instance, it would be much more clear if § 102 of the Copyright Act specifically listed outdoor, street art in its record of what is generally capable of copyright protection. The Copyright Act must be more explicit about its protection of graffiti art because it is apparent that the public does not realize the worth and value of street art. Graffiti art is clearly capable of copyright protection, so long as the art is an original work of authorship that is fixed in a tangible medium. However, despite its capacity for protection, there are still numerous infringers who blatantly steal street designs. Because there is such deliberate and brazen theft of graffiti art, the Copyright Act should list outdoor, street art as a type of subject matter that is capable of protection.
Additionally, VARA should be amended in a few ways. First, building owners should give actual notice to artists before destroying the artwork, and building owners who sanctioned the murals should be required to help the artist remove or capture the work. Also, VARA must more precisely define what recognized stature means. But, as well as providing more clarity about the recognized stature criterion, the recognized stature standard should not be applied stringently as to preclude protection to graffiti art. Courts should give high deference to multiple experts in order to determine whether a work is of a recognized stature. Relying on one expert per party is not adequate when evaluating the stature of an artwork because both experts will have varying opinions based on the party they are representing. Rather, the courts should employ independent experts in the recognized stature analysis to provide an unbiased determination.
There must be safeguards in order to ensure that treasured works of art are not discarded because they do not quite reach the strict, narrow, and unpredictable recognized stature standard. Instead, the recognized stature requirement must be read and construed broadly to include rather than exclude theoretically important works. Otherwise, socially and fundamentally valuable works of art—works that require the same level of skill and talent as Picassos—will be destroyed forever because one or two experts feel differently about them.
 Marisa A. Gomez, The Writing on Our Walls: Finding Solutions Through Distinguishing Graffiti Art from Graffiti Vandalism, 26 U. Mich. J.L. Reform 633, 636 (1993) (citing Lisa N. Howorth, Graffiti, Handbook of American Popular Culture 549, 551 (1989)) (noting that the Mayans created graffiti between 100 B.C. and 700 A.D. and the Phrygians of central Turkey produced writings dating from around 1200 B.C.).
 See id. at 634, 657.
 Merriam-Webster, Graffiti, http://www.merriam-webster.com/dictionary/graffiti.
 See Gomez, supra at note 1, at 657.
 See id. at 634, 641.
 For example, in 2008, one of Banksy’s pieces sold at a Sotheby’s auction for $1.9 million. See Lindsay Baker, Banksy: Off the Wall, The Telegraph (Mar. 28, 2008), http://www.telegraph.co.uk/culture/art/3672135/Banksy-off-the-wall.html.
 Banksy Biography, Biography.com (Dec. 18, 2015), http://www.biography.com/people/banksy-20883111#identity.
 Id.; see also Raka Sen, The Art Evolution of Banksy, Complex (Oct. 17, 2013) http://www.complex.com/style/2013/10/banksy-art-evolution/.
 Sen, supra note 8.
 For instance, last year, street artist Kobra painted a mural in Brooklyn titled “Fight For Street Art.” Joseph Licata, Warhol and Basquiat Fight for Street Art, Surf Collective NYC (Oct. 6, 2014), http://surfcollectivenyc.com/fight-for-street-art/.
 This Paper will not be addressing unsanctioned, illegal graffiti work.
 U.S. Const. art. I, § 8, cl. 8.
 Before the 1976 Act, there were the 1790 and 1909 acts. See, e.g., Steven Bolaños, “Knock, Knock, Knockin’ on (Congress’s) Door”: A Plea to Congress to Amend Section 203 of the Copyright Act of 1976, 41 W. St. U. L. Rev. 391, 394 (2014). Under the 1790 Act, a copyright owner gained protection for fourteen years, and then could renew the initial term for an additional term of another fourteen years. Id. The fourteen-year initial term was extended to twenty-eight years pursuant to the 1909 Act. Id.
 See id. at 394.
 Bolaños, supra note 13, 394-95.
 17 U.S.C. § 102.
 17 U.S.C. § 101.
 See, e.g., Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
 Id. at 361.
 Williams v. Cavalli, No. CV 14-06659-AB JEMX, 2015 WL 1247065, at *1 (C.D. Cal. Feb. 12, 2015).
 See generally id.
 Id. at *1.
 Complaint at 3, Williams v. Cavalli, No. 2:14-cv-06659-AB-JEM (C.D. Cal. Nov. 10, 2014).
 Julie Zerbo, Graffiti Artists Fight Copying by Fashion Brands, Business of Fashion, (Feb. 26, 2015), http://www.businessoffashion.com/articles/intelligence/graffiti-artists-fight-copying-fashion-brands.
 Motion to Dismiss at 3-5, Williams v. Cavalli, No. 2:14-cv-06659-AB-JEM (C.D. Cal. Feb. 12, 2015).
 Janie Campbell, Street Artist Sues American Eagle For Using His Work In… Just About Everything, The Huffington Post (July 29, 2014), http://www.huffingtonpost.com/2014/07/29/aholsniffsglue-american-eagle-artist-lawsuit-copyright_n_5627862.html.
 Complaint at 5, Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618-ALC (S.D.N.Y. July 23, 2014).
 See generally Campbell, supra note 27.
 See id.
 See id.
 Bill Donahue, American Eagle, Street Artist Settle Copyright Suit, Law360 (Dec. 2, 2014), http://www.law360.com/articles/600542/american-eagle-street-artist-settle-copyright-suit.
 Complaint at 6, Tierney v. Moschino, No. 2:15-cv-05900-SVW-PJW (C.D. Cal. Aug. 5, 2015).
 See id. at 2.
 Id. at 3.
 Id. at 2.
 Id. at 3.
 Dareh Gregorian, Artist Maya Hayuk Accuses Singer Sara Bareilles of Using her Artwork Without Permission, Files Lawsuit, N.Y. Daily News (Aug. 20, 2014), http://www.nydailynews.com/entertainment/gossip/sara-bareille-artwork-permission-lawsuit-article-1.1911136.
 Complaint at 5, Hayuk v. Sony, No. 1:14-cv-06659 (S.D.N.Y. Aug. 19, 2014).
 Id. at 12.
 Hayuk v. Sony Music Entertainment et al., PaceMonitor, https://www.pacermonitor.com/public/case/4354835/Hayuk_v_Sony_Music_Entertainment_et_al.
 Zerbo, supra note 25.
 Williams v. Bridgeport Music Inc., 2013 WL 6831871 (C.D. Cal.) (Trial Pleading).
 Blake Brittain, Musicians More Careful After ‘Blurred Lines’ Case, Bloomberg BNA, (Oct. 1, 2015); see also Williams v. Bridgeport Music Inc., 2015 WL 1036137 (C.D. Cal.) (Special Verdict).
 See, e.g., John Brownlee, How A Company Gets Away With Stealing Independent Designers’ Work, Fast Co. (Oct. 18, 2013), http://www.fastcodesign.com/3020194/how-a-company-gets-away-with-stealing-independent-designers-work.
 Brownlee, supra note 48; Copyright in General, U.S. Copyright Office, http://copyright.gov/help/faq/faq-general.html#mywork (last visited Feb. 2, 2016).
 New Media Rights, Comment Letter before the Copyright Office Library of Congress on Remedies for Small Copyright Claims, No. 2011-10, n.26, http://www.copyright.gov/docs/smallclaims/comments/38_new_media_rights.pdf (citing Am. Intellectual Prop. Law Ass’n, Report of the Economic Survey 2011, 35 (2011) (showing that the median cost for litigating a copyright infringement lawsuit with less than $1 million in damages at issue was $350,000)).
 See, e.g., Crimi v. Rutgers Presbyterian Church in City of New York, 89 N.Y.S.2d 813 (Sup. Ct. 1949).
 See id.
 See id.
 See id.
 Natalia Thurston, Buyer Beware: The Unexpected Consequences of the Visual Artists Rights Act, 20 Berkeley Tech. L.J. 701, 704 (2005). The Berne Convention is a multilateral copyright treaty, which opens the United States to copyright relations with dozens of other countries. 6 Lindey on Entertainment, Publ. & the Arts § 16:92 (3d ed.).
 17 U.S.C. § 106A(a)(3)(B).
 Id. § 106A(a)(1), (2).
 Id. § 106A(a)(2), (3).
 Id. § 101.
 See 17 U.S.C. § 106A.
 Thurston, supra note 56, at 715.
 Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212 (E.D.N.Y. 2013).
 Id. at 218.
 Id. at 219.
 Id. at 224.
 Id. at 226.
 Id. at 221.
 Id. at 222.
 See generally Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), aff’d in part, vacated in part, rev’d in part, 71 F.3d 77 (2d Cir. 1995).
 Id. at 325.
 See supra Part II.b.
 Complaint, Henderson v. Ziman, No. 2:14-cv-03042-SJO-AS (C.D. Cal. Apr. 21, 2014).
 Id. at 4.
 Id. at 5. The Doors had famously been photographed standing in front of the mural. See id.
 Victor Henderson v. Ralph Ziman, PaceMonitor,
 See supra Part III.b.
 See Cohen, 988 F. Supp. 2d at 221.
 See supra Part II.b.
 Laura Gilbert, Why the Visual Artists Rights Act Is Failing, Artsy Inc. (Sept. 29, 2015), https://www.artsy.net/article/artsy-editorial-why-the-visual-artists-rights-act-is-failing-to-protect-street-art-and-murals.
 See, e.g., id.; see also 17 U.S.C. § 113.
 Complaint at 5, Henderson v. Ziman, No. 2:14-cv-03042-SJO-AS (C.D. Cal. Apr. 21, 2014).
 See, e.g., Gilbert, supra note 86.
 See id.
 See id.
by Nadia Kashem, Staff Writer
The photograph above depicts Naruto, a crested black macaque who freely spends his days frequenting the trees of the Tangkoko Reserve on the island of Sulawesi, Indonesia. Unbeknownst to this ape is a legal battle spanning three continents. PETA filed a lawsuit on his behalf to determine whether an animal can be considered an author for the purpose of holding a copyright to its artistic work.
David J. Slater is a British photographer and owner of DJS Photography. He is also the main defendant in the lawsuit. DJS Photography’s website bares an image of a grinning Naruto on the front page, with an option to purchase the selfie prints as a Christmas gift. Slater’s book, Wildlife Personalities, includes the selfies and numerous photographs he took of other animals around the world.
Blurb, a second defendant named in the lawsuit, is a San Francisco-headquartered company that allows users to self-publish books by uploading images and arranging the format and text on its software. Users can then order personal copies or list their books on Blurb’s online store for public purchase. Since 2014, Slater has sold Wildlife Personalities through Blurb and other websites such as Amazon.
The plaintiff, People for the Ethical Treatment of Animals (PETA), is a nonprofit charity and corporation based in Virginia that promotes animal rights around the world. PETA focuses on the idea that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way.” The organization was the center of some controversies in recent years. On September 21, 2015, on behalf of Naruto as his “next friends” (due to Naruto’s legal incapacity), PETA filed the lawsuit against Slater, Blurb, and Slater’s company—the UK-based Wildlife Personalities, Ltd., of which Slater is the sole owner—in the U.S. District Court in the Northern District of California.
The complaint alleges that Slater and Blurb infringed on Naruto’s copyrights to the images. PETA asked the court to 1) recognize Naruto as the author and copyright owner of the photographs with full rights; 2) disgorge the profits that the defendants have made from publication of the photographs; and 3) allow PETA, along with other third parties, to protect Naruto’s interests by ensuring that all proceeds from the lawsuit, minus expenses, will go towards Naruto, the other crested black macaques, and the preservation of their natural habitat.
The photograph above, and others similar to it, were viewed around the world after Wikimedia posted the images to its website in 2011. Since then, the virility of these images has suddenly brought attention to macaques. Macaques are a highly intelligent species, known for their Machiavellian tactics. These monkeys compete for social status, power, and mating privileges. Crested black macaques, in particular, are also critically endangered and their population has plummeted by eighty percent in the past forty years. The legal controversy in question has also brought more attention to this species. Although the lawsuit was filed just a few months ago, the incident began four years prior.
In 2011, amidst the lush forests of Indonesia, the photographer Slater and his guide trekked through a forested region of Sulawesi when they came upon a group of twenty-five crested macaques. Allegedly, it took a while for Slater to gain the monkeys’ trust, until finally the monkeys gathered around to play with his hair and his camera.
The version of events that follow is disputed. PETA claims that the camera was left unattended and that a macaque called Naruto purposely and voluntarily pressed the shutter button—without any aid by the photographer—which caused the images to be produced. Naruto’s relaxed eye contact and funny faces suggest that he recognized himself and was aware of the significance of his actions.
The British photographer’s personal account, however, is quite different. On his website, Slater recounts the story as one in which he set up the camera on a beanbag and turned on the self-timer. He alleges that after the monkeys became bored of grooming him, he had to encourage the macaques to return, at which point they started playing with his camera. No selfies were taken at this point. Slater then set up the camera on a tripod, attached a wide-angle lens, and configured the settings. By then, the monkeys, including Naruto, began showing their teeth in the reflection of the lens and pressed the button hundreds of times, perhaps amused by the shutter noise. The camera captured many random photographs, but some were full portraits of Naruto taken by the monkey himself. The series of images came to be known as the “Monkey Selfies.” Slater alleges that he kept one hand on the tripod the entire time; however, he also says that he moved away to give the monkeys space, which is significant because the self-photography was perhaps not as spontaneous as the photographs appear and, instead, were a product of the actions of both Naruto and Slater.
These actions also affect who is considered the proper copyright holder and may even suggest that Naruto and Slater are co-authors. Under U.S. copyright law, a joint work is defined as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”  Assuming for now that Naruto can be considered a copyright holder despite not being human, Slater may also own rights to the photographs if his joint effort contributed to the camera being purposely positioned in such a way that would aid Naruto in capturing those images. Slater’s actions suggest that he intended the monkeys to use the camera for such a purpose. On the other hand, it is unclear whether Naruto intended the image to be captured or if he was simply playing with the shutter button while unaware of the effects of his actions. Therefore, if Slater’s efforts did indeed contribute to the image being taken, then perhaps he may be considered the proper copyright holder even if Naruto is not. However, if Naruto did indeed have the requisite intent, the photographs would not exist if he hadn’t smiled into the camera, made faces, and pressed the button. Indeed, the photographs have been marketed as “Monkey Selfies,” not as simply photographs of a monkey taken by a photographer. Slater’s profits from selling these photographs may be unjust enrichment. Without Naruto’s own actions, the photographs would not have the value they have today because of this significant detail.
As PETA argued, if another human took a photograph with Slater’s camera, that person would own rights to that photograph. Even though a dispute remains as to whether Slater can be considered the author—since he set up the camera and later developed the images despite the monkeys taking the photographs—given that Naruto is not a natural person, perhaps the photographs would be best described as anonymous work. According to the U.S. Copyright Act, an “anonymous work” is defined as “a work on the copies or phonorecords of which no natural person is identified as author.” The Copyright Act, however, does not give any specific definition of the word “author” and does not expressly prohibit animals from having authorship over a work. PETA argued, therefore, that the term can be broad enough to include other animals besides homo sapiens.
For example, the Nonhuman Rights Project has recently filed a writ of habeas corpus in New York State Supreme Court to release Tommy, a chimpanzee, from captivity. The organization requests the court grant Tommy personhood status so that he can be released from a cage in a used trailer lot. If successful, Tommy’s case may open the floodgates to similar claims, as he would no longer be considered property. In December 2014, Argentina granted legal person status to an orangutan named Sandra. Primates’ high level of intelligence may make for a stronger argument in their favor in granting them personhood status.
This case may be significant for other animals too. Elephants in Thailand, for instance, have been known to create paintings using their trunks. However, they are trained to do this; it is beyond their natural abilities. Painting is a joint effort in which the trainer contributes to the final artwork by slightly tugging on the elephant’s ear in different directions, to which the elephant responds by moving his trunk vertically or horizontally. The result is a series of strokes that accumulate into an image of flowers or trees. However, it is unlikely that the elephant recognizes this expression, and because of this, the trainer is perhaps the actual artist, if not a co-author, of the work. Despite this fact, the artwork is sold as the elephant’s own and not as the trainer’s. Marketing the artwork as a painting created by the elephant seems to enhance the painting’s value. Moreover, if the elephant had not dipped the brush in paint with its trunk and then moved it side to side on the paper, “elephant art” would not exist. Therefore, the elephant is an integral part of this process. Although the elephants are called artists, the elephants do not share the legal rights of artists. In addition, elephants can unfortunately be subjected to abuse to create these paintings and are sometimes exploited in the name of art.
Like Tommy’s case, Naruto’s case raises concerns that—should PETA succeed—the floodgates for similar litigation will open. Slater has in turn sued Wikimedia for the use of the Monkey Selfies for copyright infringement. The organization countered that Slater’s rights were not infringed because the photographs were authored by Naruto. Their argument was that Slater does not have standing since Naruto was the one who took the photographs, but because Naruto is not human in order to be considered an author, no one can own the copyrights and, therefore, the photographs are automatically part of the public domain.
Ultimately, the PETA lawsuit was short-lived. On January 6, 2016, in the United States District Court in San Francisco, Judge William H. Orrick held, “While Congress and the President can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act.” He explained that it is an issue for Congress and the President to decide if the law should extend towards animals. It seems that it is not a matter of constitutional interpretation but rather a legislative act that can bring the recognition to animals that PETA seeks.
Despite this result, PETA has not given up and PETA continues to argue that animals should be granted rights. The organization’s general counsel, Jeff Kerr, has said, “We will continue to fight for Naruto and his fellow macaques, who are in grave danger of being killed for bush meat or for foraging for food in a nearby village while their habitat disappears because of human encroachment. This case is a vital step toward fundamental rights for nonhuman animals for their own sake, not in relation to how they can be exploited by humans.” 
Even Slater has written in his book, “The recognition that animals have personality and should be granted rights to dignity and property would be a great thing.” The law still recognizes animals as property, but—as bizarre as this case may initially sound—even if initially unsuccessful, the case is still progress towards recognizing animals as creative beings deserving of certain rights given to people.
 Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938, at *1 (N.D. Cal. Sept. 21, 2015).
 PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, This Selfie May Set a Legal Precedent, Peta Blog (Sept. 22, 2015), http://www.peta.org/blog/this-selfie-may-set-a-legal-precedent.
 PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, This Selfie May Set a Legal Precedent, PETA BLOG (Sept. 22, 2015), http://www.peta.org/blog/this-selfie-may-set-a-legal-precedent.
 Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938, at *5, *8 (N.D. Cal. Sept. 21, 2015).
 Michael Winerip, PETA Finds Itself on Receiving End of Others’ Anger, THE NEW YORK TIMES (July 6, 2013), http://www.nytimes.com/2013/07/07/us/peta-finds-itself-on-receiving-end-of-others-anger.html.
 Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938 (N.D. Cal. Sept. 21, 2015).
 Matthew Sparkes, Wikipedia Refuses to Delete Photo as Monkey Owns It, THE TELEGRAPH (Aug. 6, 2014, 12:03 PM), http://www.telegraph.co.uk/technology/news/11015672/Wikipedia-refuses-to-delete-photo-as-monkey-owns-it.html. Wikimedia is a nonprofit that runs Wikipedia and makes Slater’s images online available for free.
 A term coined after the Renaissance diplomat who forwarded his theory of cunning political practices. See Niccolo Machiavelli, The Prince (1532).
 Humans and Monkeys Share Machiavellian Intelligence, Phys.org (Oct. 24, 2007), http://phys.org/news/2007-10-humans-monkeys-machiavellian-intelligence.html.
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 Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938, at *1, *6 (N.D. Cal. Sept. 21, 2015).
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 17 U.S.C. § 101
 17 U.S.C. § 101
 Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938, at *2 (N.D. Cal. Sept. 21, 2015).
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 Kate Good, Elephant Artists? Here’s Why Making an Elephant Paint is Cruel, Not Cute, ONE GREEN PLANET, http://www.onegreenplanet.org/animalsandnature/why-making-an-elephant-paint-is-cruel-not-cute (last visited Dec. 18, 2015).
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 Mike McPhate, Monkey Has No Rights to Its Selfie, Federal Judge Says, THE NEW YORK TIMES (Jan. 8, 2016), http://www.nytimes.com/2016/01/09/business/media/monkey-has-no-rights-to-its-selfie-federal-judge-says.html?partner=rss&emc=rss&smid=tw-nytimesarts&smtyp=cur&_r=0.
 See Why Animal Rights, PETA, http://www.peta.org/about-peta/why-peta/why-animal-rights/ (last visited March 11, 2016)
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 DAVID J. SLATER, WILDLIFE PERSONALITIES (Blurb, Incorporated, 2014).