PETA Suit Claims Monkey Holds the Copyright to Famous Selfie, but the Ladies …

23 Sep 2015 | Author: | No comments yet »

Here’s why PETA filed a lawsuit on behalf of a selfie-taking monkey.

While most people contend no, People for the Ethical Treatment of Animals (PETA) argues otherwise in the lawsuit they filed on behalf of a monkey in federal court Tuesday. The animal rights activist group is referring specifically to Naruto, a six-year-old rare crested macaque who lives on the Tangkoko Reserve in Indonesia.

An animal rights organisation has launched a lawsuit arguing that a monkey who appeared in a much-publicised selfie should have received damages for people abusing its copyright. You may recall the origins of this tale; as the president (and sole member) of the exclusive fraternity of ex-primatologists who went on to teach and practice copyright law, I have endeavored to keep VC readers up to date on this story, beginning here in 2011 and continuing here and here.

The basic problem: according to a professional wildlife photographer (David Slater), the owner of the camera on which the photo was taken, it was Naruto him (or her?) self who snapped this picture, after his/her group of Indonesian macaques invaded Slater’s campsite where the camera was set up on a tripod and ready to go. But professional British wildlife photographer David J Slater and his company, Wildlife Personalities Ltd, both claim copyright ownership of the photographs.

Slater began interacting with a few monkeys, a curious macaque, identified as “Naruto” by field researchers, figured out how to press the shutter on Slater’s camera and actually succeeded in taking a few selfies. The question of whether (a) Slater, (b) the monkey or (c) nobody owns the copyright to this photo — indeed, the question of whether there is any copyright protection at all for the photo — is not, as I said before, an “entirely ridiculous one.” OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions concerning the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — elephant drawings, chimpanzee-created music) to the more sublime (the copyright status of works “authored” by computer programs or Artificial Intelligence engines). Also named as a defendant is the San Francisco–based publishing company Blurb, Inc., which published a collection of Slater’s photographs, including two of the Naruto images. According to PETA US, as “next friend” to Naruto, they are seeking the court’s permission to manage the copyright in the photos, to license them for commercial use, and to use 100% of the proceeds for the benefit of Naruto and his community, without compensation. To begin with: How do they know the plaintiff-in-interest’s name is “Naruto”? [There’s an old joke: Stranger to Farmer: “That’s a real nice hog you got there — what’s his name?” Farmer to Stranger: “Don’t know for sure, but we call him Bill.”] Or that Naruto is 6 years old?

Their numbers have decreased by approximately 90 per cent over the last 25 years as a result of human encroachment, being killed by humans in retribution for foraging on crops, and being trapped and slaughtered for meat. Slater, who describes himself as a wildlife photographer that struggles to earn a living, also expressed his disappointment that he was not contacted by PETA in advance. A Celebes crested macaque (Macaca nigra), also called Sulawesi crested macaque, the local name Yaki or monkey that is endemic to the Black Sulawesi North Sulawesi seen in Tangkoko Nature Reserve which is a conservation area for some wildlife in North Sulawesi. It has an interesting constitutional dimension, inasmuch as the Constitution gives Congress only the power to grant “authors” rights in their “writings.” [Originalists will presumably have a field day tracking down the Framers’ view of non-human animals as “authors.”] And I also have a feeling that the ridiculous idea that non-human animals have “rights” of any kind (including ownership rights) will seem less and less ridiculous over time, and that the presentists of the future will look back and shudder at the manner in which we treated animals and wonder how we could have been so morally obtuse (somewhat in the way today we view slaveholders of days gone by).

He taught intellectual property/Internet law at Georgetown and Temple Universities, and is the author of In Search of Jefferson’s Moose: Notes on the State of Cyberspace.

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