Constitutional Law Copyright Law

Monkey Can See, Monkey Can Do, But Monkey Can’t Own

On Wednesday, a federal judge said the macaque who famously snapped a picture of himself cannot be declared the owner of the image’s copyright. The photo in question was taken in 2011 on the Indonesian island of Sulawesi, with a camera owned by nature photographer David Slater. But Slater didn’t trip the shutter: the macaque did.

Some outlets — including Wikipedia — maintain that no one owns the copyright to the photo and they have been using it as an image in the public domain. The U.S. Copyright Office, since the dispute began, has specifically listed “a photograph taken by a monkey” as an example of an item that cannot be copyrighted. It says Slater cannot own the rights to the handful of images snapped by macaques in the Tangkoko reserve on the Indonesian island of Sulawesi in 2011. Works “produced by nature, animals, or plants” cannot be granted copyright protection, the US Copyright Office said in 2014. Slater maintains that his British copyright should be extend to the States. But either way, he said, one thing is clear – it does not belong to the monkey. He asked the court to dismiss PETA’s claim.

The People for the Ethical Treatment of Animals (PETA), joined by primatologist Antje Engelhardt,filed a lawsuit last year on behalf of the monkey — which it chooses to call Naruto — arguing that, because Naruto snapped the trigger Naruto owns the copyright (which PETA is then graciously offering to administer on the monkey’s behalf).

What I really like about the motion is that its main part consists of two pages and its total length is four pages. It goes right to the point. Here is a line from the introduction – it is the very first thing the judge would read after the boiler plate notice of motion preceding it:

A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the set up to a punchline is really happening. It should not be happening

The brevity with which his lawyers address the argument is in direct proportion to the merits of the claim. Per the Constitution, Congress is vested with writing laws to protect intellectual property rights. They did not give rights to animals to pursue copyright claims. Therefore Naruto and his handlers have no standing to bring the claim. It would be up to Congress to authorize claims on behalf of animals – which will never happen even under this current ridiculous Congress.

PETA and other animal rights organizations have previously tried to have courts recognize an animal’s individual right to bring a suit. But all those efforts have failed and will continue to fail and should fail for reasons I stated in this post There are plenty of enforceable laws on the books to protect animals and make sure they are not abused or mistreated. But to confer legal standing on a non-human to bring their own lawsuit on their own behalf is wasteful, pointless and make a mockery of the courthouse. Kudos to Slater’s lawyer Andrew J. Dhuey for the making the point clearly and concisely:

“Monkey see, monkey do is not good law. . .The only pertinent fact in this case is that Plaintiff is a monkey suing for copyright infringement. [I]magining a monkey as the copyright ‘author’ in Title 17 of the United States Code is a farcical journey Dr. Seuss might have written.”

The judge is set to issue his written decision soon. In the meantime here is the famous image:

Macque Selfie

UPDATE: Sept 2017: PETA and Slater have apparently reached a settlement agreement. Under the agreement, Slater will donate 25% of any future revenue derived from using or selling the monkey selfie to charities that protect the crested macaques, according to a joint statement published on PETA’s website:

“PETA and David Slater agree that this case raises important, cutting-edge issues about expanding legal rights for nonhuman animals, a goal that they both support, and they will continue their respective work to achieve this goal,” the two parties said.

I guess Slater just wanted to stop spending money on PETA’s appeal, which was destined for failure. In the meantime, no one owns the US copyrights on the image as per the judge’s original provisional ruling as Slater did not take the photo.

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