Selfie-Awareness by Mark KaufmanRecently the United States Court of Appeals for the Ninth Circuit made news when it granted appellate review of what rights a monkey has to his intellectual property. The case — Naruto, a crested macaque, by and through his next friends, People For The Ethical Treatment of Animals [PETA], Inc. v. David John Slater, et al. — settled before the appeal was briefed or argued. According to the settlement, the copyright will remain in the name of the human photographer whose camera was used by the animal — but 25% of future profits will go to charity to benefit wildlife preserves that protect macaques.

First, some background. In 2008, a nature photographer named David Slater began following a group of crested macaques in Indonesia. On his second day trying to infiltrate a group of the macaques, he set up his camera on a tripod and left it out in the open. One macaque approached the camera and took dozens of pictures, including three “selfies.” Slater began to enjoy some commercial success with the photos when, in 2015, PETA sued him. The group sought a copyright registration on behalf of the monkey and to administer the resulting proceeds of the photo.

The whole case is curious to me for a few reasons.

  • How was Naruto, the macaque, granted standing? In January of 2016, the district court already dismissed the case in a relatively short opinion, finding that there’s nothing in the Copyright Act that indicates a non-human primate had standing to bring the case. The Act does not mention animals. Rather, the definition of “author” refers to a “person,” and other cases indicate that “a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].”
  • I learned that there is a section of the Compendium of U.S. Copyright Office Practices issued in 2014, which requires a work of authorship to be by a human being. Indeed, with cruelly specific language, the Copyright Office will not register works produced by “nature, animals, or plants” including, by specific example, a “photograph taken by a monkey.” (One has to wonder: what prompted the authors of that section to draft such a regulation?). In any event, courts generally give deference to a government agency’s interpretation of the law, since the agency is presumed to be well-versed in applying such law.
  • How did PETA come to the conclusion that it is the representative of non-human animals? I suppose that there are other lawsuits brought on behalf of environmental causes, on behalf of disenfranchised voters, on behalf of people in poverty who can’t afford lawyers. It’s an interesting philosophical question to ask PETA, “What higher power appointed you to be this animal’s lawyer?” (Of course, that’s not to say that creatures, the environment, and the dis-enfranchised should go without representation.)

As for something in which the rest of us “human animals” might be interested: The series of humorous selfies taken by Naruto indicate a profound self-awareness, as well as the dexterity to use a camera without messing up the shot with his opposable thumbs. Nevertheless, the courts do not recognize these apparent shades of sentience in nature, and neither does the Copyright Act, as presently written.

Mark Kaufman

Mark S. Kaufman
Kaufman & Kahn

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