The legal battle over who has the copyright claim to the pictures taken by a monkey has finally come to an end. The monkey self-portrait (“selfie”) dispute is a series of much discussed legal proceedings concerning photos taken in 2011 by a crested black macaque, Naruto, using equipment belonging to a British tourist (David Slater) while visiting the Tangkoko Reserve on the island of Sulawesi, Indonesia. The cases raised questions regarding the assignment of copyright protection to non-human beings as well as jurisdictional issues in connection with the online publication of the pictures. Two main cases are discussed here. The first dispute took place at the United States Copyright Office where Mr Slater opposed Wikimedia Commons, who reproduced and hosted the pictures online without authorisation. The second proceedings (Naruto et al v. David Slater) refer to a lawsuit lodged against Mr Slater by an animal organisation, People for the Ethical Treatment of Animals (PETA).
David Slater v Wikimedia Commons
The first dispute arose in 2011 when Wikimedia, the non–profit organisation behind Wikipedia, refused Mr Slater’s request to remove the pictures. In the same year, Mr. Slater decided to license some of the pictures to Caters News Agency, who later contacted the Daily Mail, The Telegraph, and The Guardian in order to have the pictures published. After distribution in the British media, the picture of the smiling monkey was quickly picked up by other news sources around the world and the story went viral. Later that same year, an editor of Wikimedia Commons created a note describing the whole incident and included an accompanying picture of a monkey, with the following statement: ‘This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested’. Importantly, Wikimedia Commons only accepts content which is free of licence, is ineligible for copyright protection and available in the public domain. After discovering the statement in question, Mr Slater requested that Wikimedia remove the pictures from their domain, without success.
The conflict between Wikimedia and Mr Slater was covered in detail by the blog Techdirt. Techdirt also used one of Naruto’s selfies with a public domain licence, using the same argument as Wikimedia. In essence, Techdirt argued that the picture at issue cannot constitute an ‘artistic work’ within the meaning of copyright law since Mr Slater was not directly involved in the creation of the picture and the picture itself did not meet the requirement of an ‘author’s own intellectual creation’. Shortly thereafter, Caters News Agency issued a takedown notice to Techdirt claiming lack of any permission to have the pictures published. In return, the blog’s author claimed that the use of the picture qualifies as ‘fair use’ under U.S copyright law. In response, and in order to bolster his claim as the owner of copyright in the pictures, Mr Slater argued that he had engineered the situation which led to the taking of the picture. He had travelled to Indonesia, got acquainted with the group of wild animals and sacrificed a significant amount of time in setting up the camera equipment in a favourable environment, which encouraged wild animals to use the camera. In doing this, he considered his contribution sufficient to entitle him to copyright protection.
Eventually, the dispute ended up at the United States Copyright Office. On 21 August 2014, the Office decided that the picture at stake was not susceptible to copyright protection, since “only works created by a human can be copyrighted under United States law, which excludes pictures and artwork created by animals or by machines without human intervention” and that “because copyright law is limited to ‘original intellectual conceptions of the author,’ the copyright office will refuse to register a claim if it determines that a human being did not create the work”. On 22 December 2014, the US Copyright Office further clarified its stance not to grant copyright protection to a picture, stating that it would be equal to the assignment of the copyright protection to a ‘mural painted by an elephant’, which is another well-known example of creations not susceptible to copyright protection and therefore not eligible for registration.
In separate legal proceedings dating back to September 2015, PETA decided to sue Mr Slater in a California District Court on behalf of the monkey Naruto. After Slater’s official publication of the monkey’s pictures in a book, “Wildlife Personalities”, published by Blurb Inc., PETA accused both Slater and the publisher of “falsely” claiming authorship of the pictures. Using the ‘next friend principle’, PETA requested that the District Court assign (i) copyright protection to Naruto, and (ii) the administration and the management of its rights to PETA. To this effect, the organisation argued that the profits derived from commercial distribution and advertisement of the pictures will be contributed to Naruto and other macaques living in the Indonesian National Park.
During the hearing in January 2016, the US District Judge did not grant standing to Naruto, on the grounds that a monkey cannot be considered an author within the meaning of the US Copyright Act. The case was later dismissed on the basis that copyright protection cannot be granted to animals.
In March 2016, PETA filed an appeal to the Ninth Circuit Court of Appeals. However, in August 2017, before any proceedings took place, the lawyers of both parties notified the court that they had reached a settlement in which Mr Slater would donate twenty-five percent of the revenues generated by the pictures to the animal organisations committed to the protection and preservation of the monkey’s natural habitat.
Although the issue of the copyright protection for animals has been previously discussed in academic circles, the Monkey Selfie disputes clarify that, as a general rule, non-human actors are not entitled to copyright protection. This is also consistent with the European practice whereby the work must pass the originality test as established by the CJEU in Infopaq, that the work must be the ‘author’s own intellectual creation’ – it is a test which a monkey would surely fail. As to pictures in particular, the CJEU further specified in Painer that copyright also subsists in a picture if the work reflects the personality of an author, and it expresses his/her free and creative choices, evidenced e.g. by lighting, framing, editing and the overall atmosphere created. In this case, although the monkey took the picture as such, it can be argued that Mr Slater’s efforts in coaxing the monkey to take the pictures could suffice to assign copyright protection to the photographer.
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DAVID SLATER is the reason the photo even exists. It is his photo.
Being a wildlife photographer is hard work. I document wild horses and wild horse roundups, as well as taking the time and effort and usually footing at least some if not the entire expense to follow the captured horses as they are put through the federal government’s Wild Horse and Burro system. I seek to document the horses and to be able to identify individuals, to be able to see through my camera their condition on the range and their condition as they go through captivity at the hands of the Bureau of Land Management.
I have experienced all kinds of “thefts” of my photos when I have not watermarked them. Even my watermarks are sometimes removed. Other people then invent their own story about what is occurring in the photo. Other people have claimed they have a right to use my photos any way they wish because they are not making money with my photos.
The law and I dispute this. But my point here is Mr. Slater’s story with the selfie the Macaque took disturbs me because Mr. Slater is the one who made that photograph possible. His focused efforts, his life’s work, has gone into making himself present in the space and time where that Macaque lived. All Mr. Slater’s camera equipment, the very settings on the camera in that moment, were because Mr. Slater made it happen. His intention was to capture photographs in that region of those animals, and he did everything in his power to achieve that end.
Woe to our legal system, which has lost its practical way. To get down to splitting hairs of who gets the copyright when there is only one human present who can lay claim to it tells me the legal system needs a reset.
The “proximate cause” of that photo/those photos is David Slater. The intention behind those photos was all David Slater’s. To say no one should get a copyright under these circumstances is a terrible, terrible disservice to this fine, dedicated photographer and a black eye to the US of A. I am beyond angry. I feel gutted. I feel I cannot count on the Constitution any longer since it is being twisted into unrecognizable shape by the present great minds of the United States, who by their machinations are failing to support life, liberty, the pursuit of happiness, the right to own and protect the fruit of one’s labor.