“Help, My Cat Is Famous!”: Animals and Intellectual Property Rights

by Felipe Claro & William Skewes-Cox (Claro y Cia. – Chile)

Lil Bub is an eight-year-old feline and internet celebrity with over two million Instagram followers. She owes her notoriety to several genetic deformities, including extreme feline dwarfism, which give her a unique look. She has no teeth, very short limbs, and a severely recessed jaw that leaves her tongue permanently hanging out of her mouth. Born the runt of her litter, she weighs not quite four pounds as an adult. Now imagine Lil Bub´s owner approaches you, wanting maximum protection of the cat´s intellectual property. What advice would you give?

The owner asks about Lil Bub’s unique genetics: “Can I patent her DNA to prevent copycats from stealing my followers?” Animal DNA has been the subject of patents but, unfortunately for Lil Bub, her specific DNA is not patentable. In 1996, British scientists successfully cloned a sheep and named her Dolly. Afterwards they tried to patent Dolly’s DNA. In the United States the case took years to resolve until the courts finally ruled that because Dolly’s DNA was merely an unaltered copy of natural sheep DNA, it was not patentable subject matter.

However, animal DNA patents do exist and a famous case is that of the Oncomouse. The team of Harvard scientists that received the patent did so after inserting a cancer causing gene into the mouse genome in order to facilitate cancer research. The EU, Japan, UK, US and Canada all recognized this patent based on the principle that although natural DNA is not patentable, the scientists’ genetic intervention meant that the Oncomouse’s DNA was no longer naturally occurring and hence patentable. Because Lil Bub was a naturally conceived cat, despite the uniqueness of her DNA it would not be patentable. However, isolating the DNA that gave her unique features and inserting them into normal cat DNA could trigger patent protection.

Lil Bub’s owner then asks, “May I copyright Lil Bub?” Here the answer is: there is hope! Generally copyrights are obtained for original works in a fixed medium whether that be a book, song, photograph or video. Lil Bub definitely has an original look but since she is a living cat she cannot reasonably be considered a work in a fixed medium. However, it would be possible to make a drawing of Lil Bub or to take her photo and then copyright that material on behalf of a human being. It seems that Lil Bub herself would be beyond the reach of copyright protection. No one sought intellectual property protection for the Galapagos’ famous Lonesome George Turtle. As a result, there are now dozens of Instagram accounts dedicated to earning followers based on his image but without any one account able to make an exclusive claim. This is a situation Lil Bub’s owner should avoid. But a recent case involving Lassie shows that Lil Bub’s owner might be able to assert copyright claims.

In 2011, the financial services company JG Wentworth released a commercial depicting a collie dog running across a grassy field in search of money to help his owners resolve their financial problems. The owners of the copyright of the Lassie collie dog character had not given their permission so they sued JG Wentworth. They forced JG Wentworth into a financial settlement. So, Lil Bub’s owner ought to do the same. He should pursue a copyright for the character of dwarf cat with a stuck out tongue and no teeth in order to prevent someone from profiting off a commercial with a Lil Bub look alike.

“I want to create a Lil Bub brand.” Taking the owner’s request seriously means attempting to register the cat as a trademark. Trademarks are used to “signify the source” for whatever goods or services may be sold by the owner of the trademark. As a result, Lil Bub’s owner would need to begin to sell a good or service associated with Lil Bub, or at least have the intention to, in order to meet the requirements to register her as a trademark. Live animals have been part of known trademarks, so this would not necessarily present a problem. In Chile, Spike was a former stray who became the adopted mascot (and trademark) of Lipigas, a gas distributor, and ended up the country’s most famous dog. MGM Studios trademarked its famous lion roar, but in that case it was not the lion itself that was trademarked. Dolly’s owners tried to obtain a trademark in addition to the patent but abandoned the process before successful completion.

The owners of a different internet-famous feline, Keyboard Cat, had better luck. Keyboard Cat appears in a video where, dressed up, it seemingly plays a song on a piano keyboard. The video became one of the most widely shared memes of all time. Warner Bros created a computer game for kids that featured Keyboard Cat. They even used the image and name of Keyboard Cat in promotional materials to market the game. The creator of the Keyboard Cat video sued for trademark (and copyright) infringement and won a settlement from Warner Bros in the form of a licensing fee. Still, the trademark and copyright claims are hard to disentangle so it is not clear which was stronger or which ultimately convinced Warner Bros to settle. The trademark was never officially registered and there was no judicial ruling on the allegations. Most recently, the owners of Grumpy Cat (with almost three million Instagram followers) won an award of over $700,000 USD from a jury for trademark and copyright infringement after a coffee company exceeded a license granted to it by the owners to sell products with Grumpy Cat’s likeness.

Examples do exist, though, of official PTO recognition of trademarks that incorporate live animals. Al Johnson’s Swedish Restaurant and Butik in Wisconsin successfully applied for and received a trademark for “live goats on a roof of grass.” Initially put there to keep the grass short, the goats soon became a major tourist attraction. The restaurant even adopted the slogan, “Come for the Goats – Stay for the Food.” Marching ducks were trademarked by Peabody Hotels. Each day the management of the hotel lays out a red carpet and a “Duckmaster” leads a mother duck with her ducklings as they march their way across the lobby and into a fountain where they swim. In both these cases, though, it is not the live animal itself that is trademarked but the animal carrying out some activity. The ducks and the goats could be used to support a trademark application by Lil Bub’s owner of her playing or drinking, for example.

“Do I have any more options?” A live animal is an awkward fit for the traditional categories of intellectual property. Given her internet celebrity, Lil Bub’s (owner’s) greatest protection could come from a claimed right to publicity. This common law right has its roots in the development of the right to privacy movement in America during the turn of the 20th century. The right to publicity was originally elucidated and defended in a 1954 law review article by Melville Nimmer. Responding to the rise of mass media and the fame of individuals who could master the industry, Nimmer proposed “the right of each person to control and profit from the publicity values which he has created.” Yet from the beginning, Nimmer did not only have in mind a right of publicity just for humans. He recognized that “animals, inanimate objects, and business and other institutions all may be endowed with publicity values.” He even gives as an example “the name and the portrait of the motion picture dog Lassie.” Initially the right of publicity was available only to celebrities but it was then expanded to anyone with “proof of recognizable identity.” The latest frontier in this area of law has been its extension to musical groups as entities, rather than just their individual members.

While the right to publicity is now widely recognized, even internationally, there are no cases extending this right to animals. The Supreme Court of Japan even ruled explicitly that the right of publicity did not apply to famous racehorses. However, examples like Lil Bub and the increasing number of other famous animals like Grumpy Cat could be the impetus for the extension of the right of publicity to animals. The rationale would be to protect the investment of time, energy and money in the image-making of these animals. Many times these animals go through grooming and preparation equal to any human being or, as in Lil Bub’s case, the money and energy that the owners put into rescuing them (many runts die) and dealing with their lingering health issues. Lil Bub would make the perfect test case to fulfill Nimmer’s original vision.

If the right to publicity in animals is to be granted, the question becomes: who owns that right? Nimmer believed that “the human owners of these non-human entities should have a right of publicity.” But could animals themselves be the owner of this right? In 2011, a photographer set out to see the monkeys on the Indonesian island of Sulawesi. At one point he set his camera down and a crested macaque named Naruto took several photographs of himself. These photos, known as the “Monkey Selfies”, became world famous and the photographer attempted to copyright them. His copyright was denied on the grounds that he was not the one who took the photograph. The act that led to the photo’s creation was done by the monkey. As a result, the photo entered the public domain because no one could assert any rights to it.

This changed in 2015 when People for the Ethical Treatment of Animals (PETA) filed a lawsuit for copyright infringement against the photographer and his publisher. PETA attempted to assert Naruto’s copyright claim as “Next Friends.” This doctrine allows courts to recognize one party as the guardian of another who is unable to defend their legal interests, generally due to mental incapacity, lack of access to court i.e. incarceration, or some other disability. PETA argued that the copyright belonged to Naruto but because he is a monkey he is mentally incapable of defending his rights in court. Because PETA has a long history of defending animal rights, they argued that the court should grant them this Next Friend status.

The law is murky and vacuous in this area, but PETA cited a lawsuit brought years earlier in the name of the “worldwide cetacean community.” In that case, a US Federal Appeals Court ruled that there was no constitutional obstacle to granting standing (i.e. the ability to bring lawsuits) to cetaceans but that the absence of enabling legislation specifically granting standing to animals made it impossible for the lawsuit to proceed. For the same reason PETA eventually lost its case too.

Lil Bub and other famous pets like her help to make the argument for animals themselves to own their right to publicity. Keeping income generated in the name of the animal, rather than in their owners, means that any money made must be spent according to the interests of the animal. These interests would be determined by a court-approved guardian. This is not to say that owners would be completely removed from the picture. Likely they would remain as the guardian or Next Friend. Of course owners could recover the expenses of taking care of the pet, and even of managing the “career” of the pet. However, no owner could make a claim to any money beyond their expenses and work. Left over money would have to be spent in the interest of the animal or that class of animal. For example, Lil Bub’s money could be donated to rescuing and treating other genetically deformed cats. Removing ownership from the human caretakers of pets would essentially eliminate the possibility of becoming rich off the image of a pet. In other words, it would end a form of animal exploitation. Many would consider that a good development.

In the future, animals could have rights both inside and outside the realm of intellectual property. In some areas, they actually already do have some rights. Across the United States, animals can be listed as the beneficiary of a trust, as seen in the notorious case of Trouble the Maltese who inherited $12 million USD. Existing animal cruelty laws, too, are based on a recognition that animals are due a good life and basic necessities: shelter, food, health care and freedom from violence. Giving animals legal standing would just be one more legal innovation. The expanding frontier of law might not even stop there. What about granting legal rights to plants? Or to natural objects such as rivers and mountains? A US Supreme Court justice once wrote in an opinion: “The voice of the inanimate object…should not be stilled.” While this may seem preposterous, other lifeless entities are granted legal “personhood.” Ships, institutions and corporations can all be the subject of litigation or its initiator. Once upon a time, corporate personhood was considered a radical idea. But then its proponents won out and now it is difficult to imagine a legal system without it. Perhaps in a not too distant future, legal rights for animals will be thought of in the same way. Lil Bub could be our pioneer.