If Uncle Sam’s halls of civil justice weren’t crowded enough with growling two-legged complainants, at least one four-legged plaintiff has added to the courthouse cacophony with snarls over copyright infringement: A crabby kitty has asserted that she was damaged when her name and likeness were used without permission.
But, technically speaking, the feline claim of foul play was filed on behalf of the human and legal creation known as a corporation. And a federal court in Los Angeles has decided to turn the tabby’s perpetual frown upside down — with a jury awarding $710,000 to the entity for “Tardar Sauce” in an intellectual property suit against a coffee company.
A tabby’s Ltd. gets in legal cat fight
You may know the celebrity at the heart of this case better as Grumpy Cat, the nom de guerre of Tabatha Bundesen’s pet. That cat’s an internet sensation with a permanent gloomy facial expression caused by an under-bite and a feline dwarfism. In 2012, the tabby’s meme went viral when pictures of Grumpy Cat were posted on Reddit. Since then, she has starred in the movie Grumpy Cat’s Worst Christmas Ever, appeared on major television shows, and even has her own wax figure at Madame Tussauds in San Francisco. Her fame also has led to licensing and lucrative opportunities for the commercial beast and her legal entity, Grumpy Cat Ltd.
Grenade Beverage, for example, struck a $150,000 licensing deal with Grumpy Cat Ltd. to use the animal’s image to promote a line of iced coffee beverages called “Grumpy Cat Grumppuccino.” The parties purportedly agreed that any use of the cat’s likeness for additional products would require the corporation’s consent.
But a legal cat fight broke out when Grenade Beverage launched other lines: Grumpy Cat roasted coffee and Grumppucino T-shirts. Grumpy Cat Ltd. sued Grenade Beverage and its owners, Nick and Paul Sandford, for breach of contract, with the company filing a counter-claim seeking damages for what it claimed were lost potential revenue.
The coffee company asserted that the tabby’s corporation, to secure the product deal, had falsely implied that comic actors Will Ferrell and Jack Black would star in a Grumpy Cat movie. Grenade also claimed that Grumpy Cat not only failed to promote the drinks on social media as had been agreed but also sabotaged “Grumpy Cat Grumppuccino,” by prematurely posting an image of the iced coffee.
While the federal court clawed up Grenade’s defense, and, ultimately, pulled the pin on its case and tossed it in the legal litter box, Grumpy Cat — while winning a judgement that no doubt can buy a lot of kibble — won’t go in the books as a courthouse pioneer, swinging a recent argument advanced, um, by a macaque, that animals themselves can claim copyright protections under the law.
The so-called “monkey selfie” dispute, with primate plaintiff Naruto and pushed by the activist group People for the Ethical Treatment of Animals, attracted international attention before U.S. District Judge William H. Orrick III in San Francisco ruled that the case, for now, was bananas.
But will others — man or beast — try to make the breakthrough for creatures great and small, separate from humans and corporations formed around them, for animal celebrities to win legal protections?
That may be a stretch under current laws affecting key such rights, including the right of publicity, copyright, and trademark. The right of publicity by statute is not limited to celebrity plaintiffs — see, for example, KNB Enterprises v. Matthews, 92 Cal. Rptr. 2d 713, 717 (Cal. App. 2000). It is assignable, and only exclusive licensees can sue for a violation of the right of publicity — see Bi-Rite Enterprises v. Button Master, 555 F. Supp. 1188 (S.D.N.Y. 1983). But specific language in two of the most influential publicity laws, in California and New York, speak of this right for people without mention of animals.
[T]he Copyright Act protects ‘original works of authorship.’ 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyright-able.
inspired by a divine spirit.
- A photograph taken by a monkey
- A mural painted by an elephant
- A claim based on the appearance of actual animal skin
- A claim based on driftwood that has been shaped and smoothed by the ocean
- A claim based on cut marks, defects, and other qualities found in natural stone
- An application for a song naming the Holy Spirit as the author of the work”
- Reducing or enlarging the size of a preexisting work of authorship
- Making changes to a preexisting work of authorship that are dictated by manufacturing or materials requirements
- Converting a work from analog to digital format, such as transferring a motion picture from VHS to DVD
- Declicking or reducing the noise in a preexisting sound recording or converting a sound recording from monaural to stereo sound
- Transposing a song from B major to C major
- Medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment
- A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern”
Well, meow, then.
Carla L. Martin, a 2L at Southwestern Law School who is taking the Entertainment Law and the Emerging Web class, contributed to this post.