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Posts Tagged ‘Wildlife Personalities’

Where Are They Now: The “Selfie Monkey” Naruto?

Posted on: June 1st, 2018

By: Shaun Daugherty 

Acknowledgment to the monkey that took the photo, public domain.

Remember Naruto?  No?  Well he received his 15-minute flash-in-the-pan fame over a picture very similar to the one that you see above.  (The photo is in the public domain for reasons explained below.)  The issue started when the question of whether a selfie taken by a monkey had any copyright protection attached.

See, what happened was, nature photographer David Slater had been traveling to Indonesia trying to get some good pictures of the indigenous Celebes crested macaques.  During an excursion, one, maybe more, of the furry pranksters snapped several close-up selfies.  Unconfirmed rumors claim that the frisky macaque was going to use the best photo on his MDate.com dating profile.  In any event, Slater thought that the photos were fantastic and considered himself the owner.  He licensed the photos to be published in July 2011 to several publications.  Shortly thereafter, Wikimedia Commons caught wind of the unusual artist and published the photographs without asking permission.  Slater demanded that they be taken down.  Initially Wikimedia complied, but then decided that the images were in the public domain because the copyright could not be vested in a non-human.

A blog, Techdirt, picked up the story and published the photos too.  Slater continued to demand that the pictures be removed insisting that he owned the photographs because he had made “significant contributions” to their creations.  After all, it was his equipment.  In the midst of this row, the United States Copyright Office published its 2014 “Compendium of U.S. Copyright Office Practices.”  The publication confirmed the Copyright Office’s long-standing policy that “materials produced solely by nature, by plants, or by animals are not copyrightable.”  In the 2014 edition, they specifically listed examples of what could not be registered, including a photograph taken by a monkey and a painting made by an elephant.  As an aside, the Copyright Office will also not register any work purportedly created by divine or supernatural beings or generated purely by a machine.  Sorry Thor, sorry Ultron.

In 2015, Slater published the “monkey selfies,” in a book titled “Wildlife Personalities” through publisher Blurb, Inc.  Here is where it gets interesting.  PETA (People for the Ethical Treatment of Animals) sued Slater on behalf of Naruto seeking to have the Northern District of California Court do what the US Copyright Office would not, essentially grant copyright protection to a non-human.  If they won, PETA graciously volunteered to administer any proceeds received, on behalf of Naruto and other similarly situated macaques, of course.

The District Judge declined to extend copyright law protections to animals citing the clear lack of intent in the plain language of the law to allow monkeys to sue humans.  PETA appealed to the Ninth Circuit and oral arguments were held.  Shortly thereafter Slater and PETA came to a settlement of the claims wherein Slater agreed to “donate” 25% of all future proceeds from the use of the photos to wildlife charities.  The parties informed the Ninth Circuit of their settlement and asked that the court not issue a ruling and sought vacatur.  It is an interesting legal concept that would nullify the record of the lower court.

The Ninth Circuit declined to dismiss or vacate and issued their ruling on April 23, 2018 in favor of Slater finding that animals have no right to sue under copyright law.  The court also openly questioned the motives of PETA in the case and the purported settlement as Natuto was not a party to the same.

Much of the majority and dissenting analysis involved standing to sue in general.  Based on the 2004 precedent of Cetacean Community v. Bush, surely you remember that one, the court was bound to find Article III standing for the animal.  However, even though there was Constitutional standing, there was no statutory standing as there has been a lack of specific intent in the Copyright Law to allow non-humans to sue for infringement.  It turns out that on May 25, 2018, a Ninth Circuit judge has called for an en banc review of Cetacean Community to revisit the issue of standing for animals under Article III.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].