Publicity Exactly What Was Missing from Monkey Selfie CaseILN IP Insider February 24, 2016
James P. Flynn, a Member of the Firm in the Litigation and Employment, Labor, and Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider titled “Publicity Exactly What Was Missing from Monkey Selfie Case.”
Following is an excerpt:
Interestingly, Nimmer was there quoting from the case of Lawrence v. Ylla, 55 N.Y.S.2d 343 (Sup. Ct. 1945), which enjoined third parties’ use of the photograph of the dog, despite having rejected any privacy basis under common law or statutory law. Thus, it seems that the injunction was based on protecting the right of publicity connected to the dog in question. The court evidently found it equitable to afford such protection.
The same could no doubt be said of Secretariat, American Pharoah, Cigar and any number of animals. In fact, it seems like there would be little doubt that the law would protect their owners’ rights to prevent others from economic exploitation of those animal’s identities and visages without consent, though such names are not always trademarked or images not copyrighted, at least by those owners. See Race Horses and Intellectual Property Rights: Racing Towards Recognition?, 17 Quinnipiac Law Review 207, 228-39 (1997). The question is whether next friends can assert the property right inherent in the name and image of an unowned or only collectively-owned animal like Naruto or Cecil the Lion in the same manner that the owner of a racehorse can assert such rights. Whether one comes at that question as a proponent of animal rights or, like the author, as one curious to examine creative legal arguments, it is an analysis worth considering.