NEWS
Tuesday, January 19, 2016 5
The Monkey Selfie
“Monkey see, monkey sue is not good law
—at least not in the Ninth Circuit”
- nadia
aboufariss
-
opinions editor
I consider myself incredibly fortunate to be taking
copyright this semester; it seems like 2016 is quickly
shaping up to be a tumultuous year for this area of
law. The year started off with controversy after the
copyright to Hitler’s manifesto Mein Kampf expired
on 31 December 2015. The copyright had been held
since his death by the German state of Bavaria, which
has not allowed the work to be republished in the
country since 1945. Although other jurisdictions
(and the internet) have ignored this ban, the fact that
the work is entering the
public domain has obviously raised some fears in
Germany, and prompted
a broader public debate
on how to confront propaganda and censorship
in the digital age.
On a much less serious
note, another headline
that has come out of the copyright law realm this year
involves a crested macaque named Naruto. In 2011,
British nature photographer David Slater travelled to
Indonesia to take photographs of macaques for a book
he was planning to publish. While there, the monkeys
being photographed—inquisitive by nature—became
interested in his equipment; eventually one grabbed
his camera. According to Mr. Slater, the monkey took
hundreds of photos before he was able to obtain his
camera back, most of which were blurry and unusable. A couple, however, seemed to be perfect selfies
of Naruto, the macaque who grabbed the camera.
The People for the Ethical Treatment of Animals
(PETA) filed a claim in November 2015 saying that
Naruto, having been the one who pressed the shutter on the camera and took the image, is the one who
owns the copyright of the photograph. On 6 January
2016, a San Francisco court dismissed the case due
to lack of standing and failure to state a claim upon
which relief can be granted. In a humourous decision,
the judge in Naruto v Slater began, “A monkey, an
animal-rights organization and a primatologist walk
into federal court to sue for infringement of the monkey’s claimed copyright.” In between quips, the judge
goes on to say that although it is conceivable that an
animal could have copyright over a creation, it would
be up to congress or the President to change the law,
who presently do not contemplate extending its protection to animals.
There
is
some
Canadian law that may
anticipate the question
of whether its protections can be extended to
animals. The Charter of
Rights and Freedoms, for
example, clearly specifies
“every citizen” or “every
person” before stating a
number of rights. “Everyone” is a bit less clear as a
moniker, but still arguably seems to refer to humans
(and even corporate entities in some instances).
Animal rights advocates would argue that the personhood referred to in statutes such as the Charter
should be extended to animals, but as of now, it is
assumed that this wording refers to humans alone.
Then there are, of course, laws (mostly animal protection legislation and by-laws) that refer specifically
to animals.
But what about when a statute is unclear? PETA
argued that the United States Copyright Act did not
contain language limiting its rights to humans, but
simply “authors.” It is an interesting idea, and possibly arguable, if it wasn’t for the fact that the Copyright
Office issued a policy statement in 2014 stating that
works made by animals would not qualify for copyright. This statement was at least partially prompted
by the monkey selfie itself, as a “photograph of a
Everyone’ is a bit less
clear as a moniker, but
still arguably seems to
refer to humans.
ê
David Slater/Court exhibit provided by PETA,
via Associated Press
monkey” was one of the specific examples mentioned. Also mentioned was “elephants painting
murals,” if anyone remembers that video making
the internet rounds a couple years ago of elephants
in a reserve in Thailand painting trees on a canvas.
Apparently the US Copyright Office is up to date on
viral animal videos.
Now that the courts have determined that Naruto
the monkey does not own the copyright, Mr. Slater,
who owns a British copyright of the monkey selfie
(and also claims that he is now the first person to ever
be sued by an animal) has stated that he plans to sue
Wikipedia over its unauthorized use and republication of the image on Wikimedia Commons. Wikipedia
alleges that the work is in the public domain, since
no one can own the copyright to something that was
created by an animal. This is likely to be a more interesting case than the somewhat facetious PETA claim,
and it will be interesting to see where the legal ownership of monkey selfie—and other animal created
content—ends up in the future.
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what it takes.
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