The Law and Business of Social Media
November 18, 2014 - Trademark

Monkey Selfie Redux

Monkey-Selfie Case Returns—To Court & (Maybe) a Theater Near You

When we last examined the intellectual property issues raised by a self-portrait taken by a talented female Indonesian crested black macaque—popularly known as the “Monkey Selfie”—we concluded that there was unlikely to be any copyright protection in the work, under either U.S. law or U.K. law.

Following that analysis, the U.S. Copyright Office further clarified its views on the subject.  In its public draft of the third edition of the Compendium of U.S. Copyright Office Practices, the Copyright Office specified in Section 306 (“The Human Authorship Requirement”) that “[t]he Office will not register works produced by nature, animals, or plants. . . .  Examples:  A photograph taken by a monkey.”


Now there is yet another wrinkle in the saga of what may be the world’s most photogenic monkey.

A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item).  The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken.  Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate.  But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.

We note that the application is in its very early stages, and has not yet been assigned to an examining attorney.

Having made an impact on copyright law, is the monkey now turning her sights to trademark law? What next? The right of publicity? A patent application? Will any area of intellectual property law be left untouched by this simian shutterbug? Stay tuned.