When wildlife photographer David Slater set up his camera in the rainforests of Indonesia, he hardly expected to ignite a copyright battle with a monkey. Nonetheless, the legal dispute between Slater and Naruto, a crested macaque represented by his “next friends,” People for the Ethical Treatment of Animals (“PETA”) has captured the attention of the news media.
Techdirt & Wikimedia Commons free a monkey
In 2011, Slater, frustrated by his inability to effectively photograph the elusive macaques, conducted an experiment. He set up his camera in such a way that his wide-angle lens might attract the attention of curious monkeys. He placed a remote trigger next to his camera, hoping that the macaques would hit it, and thus take their own “selfies.” This allowed Slater to get clean, close-up shots of the animals. The experiment was a success – Naruto, a six-year old male, took the bait and snapped several shots. Various newspapers and blogs picked up the photographs in the early summer of 2011. However, in July 2011, the blog Techdirt posted a piece arguing that the Monkey Selfies were in the public domain because neither Naruto nor Slater could hold their copyrights. Naruto, not being a legal person, was incapable of holding a copyright in his “selfies” and Slater, having not taken the photos, could not be classified as the author. Soon after, the Monkey Selfies appeared in Wikimedia Commons, which listed them as part of the public domain. Slater wrote to Wikimedia, asserting his copyright and asking that it either pay for the photographs or remove them. His request was denied in August 2014. Nonetheless, Blurb Publishing (“Blurb”) published his book, Wildlife Personalities, in December 2014. A grinning Naruto graced the cover.
“Next friend” PETA claims monkeys can stand
In September 2015, PETA sued Slater and Blurb on behalf of Naruto in U.S. federal court in California, claiming that they violated Naruto’s copyrights in the so-called “Monkey Selfies.” As the creature to whom the photographs owed their origin, PETA argued, Naruto was the “author” of the Monkey Selfies under the Copyright Act of 1976. While the Copyright Act protects “original works of authorship”, 17 U.S.C. § 102(a), it does not define “authorship” or “author” 17 U.S.C. § 101.
Slater rebutted Naruto’s case primarily by arguing that Naruto did not have standing under the Copyright Act, because animals cannot be authors. In its January 28, 2016 ruling, the District Court agreed with Slater for three reasons. First, if Congress intended to give animals standing under the Copyright Act, surely it would have said so. Second, while “author” may be undefined in the statute, many other case decisions have interpreted the term to mean a “human” or a “person.” None have extended the term to animals. Finally, the U.S. Copyright Office Compendium (the “Compendium”), which provides guidance on issues of copyright law, explicitly states that a work of “authorship” must be created by a human being in order to be copyrightable.
PETA appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit on March 20, 2016. After oral argument in July 2017, the parties began to discuss a settlement and the court granted their motion to stay the appeal proceedings during those talks. The parties reached a settlement on September 8, 2017, with Slater agreeing to give 25 percent of his gross earnings to charities dedicated to protecting the crested macaque and its habitat. In return, PETA dropped its appeal. As part of their joint motion to dismiss the appeal and vacate the judgment, the parties have asked for vacatur, which would nullify the record in the lower court. The Competitive Enterprise Institute, a libertarian think tank, filed an amicus brief on September 13, 2017, urging the court to deny vacatur. The brief argues, amongst other things, that since Naruto is not a party to the settlement, PETA does not have standing to move for vacatur. The Ninth Circuit has not yet ruled on whether it will grant the motion, although the settlement itself can still stand even if vacatur is denied.
Monkeys v. people in copyright law Continue Reading