In 2011, British wildlife photographer David Slater traveled to the Tangkoko Reserve on the island of Sulawesi in Indonesia. After following a troop of about 25 endangered crested black macaque monkeys in the jungle, Slater set up his camera on a tripod. The monkeys approached it, fascinated by their reflections in the lens. Eventually, they began playing with the camera and took actual photos of themselves. One monkey in particular took many self-portraits, some of which appeared with a July 2011 Daily Mail article about Slater’s interaction with the monkeys. One of the “selfies” became the cover of a book of Slater’s work, Wildlife Personalities, which was published in 2014 by Blurb, Inc., in San Francisco. The book identifies Slater as the copyright owner of the selfies.
In September 2015, the foundation for the People for the Ethical Treatment of Animals (PETA) filed a complaint in the U.S. District Court in the Northern District of California naming the monkey it calls Naruto as the plaintiff. Through his “friends” at PETA, including a primatologist named Antje Engelhardt, Naruto was suing the photographer and the publishing company Blurb for copyright infringement: “The Monkey Selfies resulted from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship … by Naruto.”
“If a human had taken a photo with Slater’s camera, that person would own the copyright to the photos,” says Jeff Kerr, general counsel for PETA. “Naruto should be treated no differently.”
The attorney for Slater and Blurb, Andrew Dhuey, filed a motion to dismiss in November 2015. “A monkey, an animal-rights organization, and a primatologist walk into federal court …,” he wrote. “What seems like a setup for a punch line is really happening.”
Dhuey cited a 2004 case in which the courts had to decide whether whales, porpoises, and dolphins could sue the U.S. Navy under the Endangered Species Act for tissue damage they’d received from sonar devices used by the Navy. The Ninth Circuit ruled that they could not. As Dhuey wrote in his motion: “[U]nless Congress has plainly stated that animals have standing to sue, the federal courts will not read any legislation to confer statutory standing to animals.”
Does the copyright of a famous selfie lawfully belong to the monkey? You be the judge.
In December 2015, PETA argued that the case presents an issue of “first impression,” meaning that a question about the interpretation of a law was being asked for the first time: “Does the Copyright Act permit Plaintiff’s ownership of the works or give him standing to assert claims under that statute?”
But in January, U.S. District Judge William Orrick ruled in favor of the defense to dismiss the case: “While Congress and the president can extend protection of law to animals, there is no indication that they did so in the Copyright Act.” In other words, Naruto can’t own the copyright to the photos he took. “We believe Congress has been clear in the Copyright Act,” says Kerr. “The Act speaks in broad terms … to allow courts to fill in case-specific decisions like this one.” PETA has the option to appeal.
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