Primatologist Tells Court That Macaque Monkeys Are, Like, Super Smart, So They Should Totally Get Copyrights

from the oh-really-now? dept

The case of the monkey selfie keeps getting weirder and weirder. I'm not going to rehash the whole damn story again -- just click the monkey selfie link above and scroll through the posts. Here's the super short version though: A British photographer named David Slater left his camera on the ground in an Indonesian jungle, where a macaque monkey (which we're now, much later, told is named Naruto, though there's some dispute over this) approached the camera and took a selfie. There were all sorts of debates online about whether or not there was any copyright in the photo and, if so, who owned it, with Slater repeatedly insisting that he did (and occasionally having representatives threaten us). A few years later, out of the blue came PETA, claiming that it represented the monkey (Naruto) and was suing Slater for copyright infringement for publishing a book with the photos. A judge, rightly, tossed out the lawsuit, pointing out (as we had argued from the very beginning) that a monkey has no right to a copyright, and the law only applies to human persons. PETA and its actually well-known and until now mostly respected law firm, Irell & Manella, have appealed the ruling.

And, now, believe it or not, PETA has gotten a primatologist and apparent "macaque expert" named Agustin Fuentes to file an amicus brief supporting the idea that a macaque monkey taking a selfie should hold the copyright in the image. Fuentes may be a macaque expert, but he's not much of a copyright expert... and it shows. The brief mainly focuses on how smart macaque monkeys are, as evidence that being smart somehow means it deserves the copyright.
Naruto, like other macaques, had likely made the connection between manipulation of the camera as an item and the sound of the shutter and the changing image in the lens as the shutter clicked. This may have been interesting for Naruto as he was noted as performing this behavior many times. It is likely that he had seen the human manipulation of the camera and heard the sounds it made and, as is common for macaques, became curious to investigate it on his own. This in no way assumes Naruto had any cognizance of the concept of a photograph but rather that the actions and noises made by the camera were enticing and that through explorative manipulation Naruto was able to cause the camera to make such sounds/actions. Naruto intentionally engaged in interactions with the camera.
That's all nice and stuff, but is has fuck all to do with the question of copyright. The purpose of copyright is to provide the incentives to create works so that the public can enjoy them. It's the intent of copyright to create a limited monopoly such that the author of the work can use that artificial monopoly to earn money for some period of time, and those profits help incentivize the creation.

Yet here, Fuentes basically admits that it's not the copyright that's the incentive here, but the neat clicking sound and what happens when the shutter is pressed.
Particularly relevant for this case, macaques can frequently understand basic correlations between acts of object manipulation and specific results. There is no question that macaques manipulate material objects with an expectation of specific outcomes. They understand, for example, that by hitting snail shells with rocks, they can crack open and retrieve the snail. Naruto’s behavior in creating the photographs in dispute is consistent with a macaque’s interest in and capacity for sophisticated object manipulation. Naruto certainly understood that he was intentionally engaged in actions with an object that was stimulating. He could recognize the association between his actions and the shutter movement and sound. These photographs are not the result of an accident; they result from specific and intentional manipulation of the camera by Naruto.
Again, even if true, that means absolutely nothing for the copyright question. The laws apply to people, not to animals, unless expressly written that way. That's a basic tenet of the law. The only weak attempt to tie this back to the copyright question is basically Fuentes and his lawyer arguing that "the law changes based on new data."
Some of the Supreme Court’s most significant modern decisions have hinged, at least in part, on attempts to understand emerging science and empirical data.
This is also true... but irrelevant. It absolutely does not matter. And, on top of that, he's introducing no new "science" here other than "macaque monkeys are smart." So what? That has no bearing on whether or not a monkey gets a copyright -- to which the answer is as pretty definitive: Hell no.

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  • icon
    That One Guy (profile), 8 Aug 2016 @ 11:52am

    "To promote the Progress of Science and useful Arts, and Incentivize the Creation of Random Noises..."

    He could recognize the association between his actions and the shutter movement and sound. These photographs are not the result of an accident; they result from specific and intentional manipulation of the camera by Naruto.

    Even assuming for the sake of argument that they expert is right, that the actions were intentional, the fact remains that the 'intent' as described by said expert was not to create a picture, but rather to make noise. Press button, get noise.

    Given the purpose behind copyright is to provide incentive to create more works(pictures, music or otherwise), rather than create more camera clicks, even after giving this argument far more weight than it deserves it still fails to explain why the monkey deserves a copyright over the photo in question.

    If the point of the monkey's action was to create noise it would have likely done the same thing with a completely dead and/or broken camera so long as it made the same noise. Copyright had nothing to do with it's motivation and a more 'expansive' copyright wouldn't have had any impact on it's actions.

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 8 Aug 2016 @ 12:02pm

      But Macaque Monkeys need to get paid!

      Forget about progress of the arts and science. Isn't copyright all about making sure artists get paid?

      Without copyright, how would macaque monkeys get paid? And thus what incentive would they have to create additional copyrightable works?

      And please don't argue about artistry or creativity of macaque monkeys. The creative works of macaque monkeys are at least on a par with most of what Hollywood churns out.

      Not only wouldn't the macaque monkeys get paid, but neither would the monopolist gatekeepers who exploit and represent them. Just like with other artists and creators.

      Without the income from copyright, how would macaque monkeys enjoy the finer things in life?

      reply to this | link to this | view in chronology ]

      • identicon
        Shmerl, 8 Aug 2016 @ 12:48pm

        Re: But Macaque Monkeys need to get paid!

        Without copyright, how would macaque monkeys get paid? And thus what incentive would they have to create additional copyrightable works?

        I wonder how copyright views the outcome the Infinite monkey theorem: https://en.wikipedia.org/wiki/Infinite_monkey_theorem
        Would some work comparable to Shakespeare and produced that way be copyrightable? And more interestingly, would it infringe on others' work if it's close enough?

        To take it from comical, to more piratical realm, let's say you have a program / artificial intelligence which makes creative works. Is AI a person? And are those works copyrightable / infringing on others?

        reply to this | link to this | view in chronology ]

    • identicon
      Michael, 8 Aug 2016 @ 12:18pm

      Re: "To promote the Progress of Science and useful Arts, and Incentivize the Creation of Random Noises..."

      Who owns the copyright on the shutter sound from that camera?

      That monkey has STOLEN from them! We need that monkey to provide compensation for such a horrible act of theft.

      reply to this | link to this | view in chronology ]

      • identicon
        Chort, 8 Aug 2016 @ 12:22pm

        Re: Re: "To promote the Progress of Science and useful Arts, and Incentivize the Creation of Random Noises..."

        And if the monkey didn't get permission to take possession of the camera, that's theft. Lock him up!

        reply to this | link to this | view in chronology ]

        • icon
          DannyB (profile), 8 Aug 2016 @ 1:05pm

          Re: Re: Re: "To promote the Progress of Science and useful Arts, and Incentivize the Creation of Random Noises..."

          Lock who up? The monkey? Or the camera owner? You did not specify.

          This is the 21st century, and it is unclear which one the police would lock up today. So you need to be clear.

          reply to this | link to this | view in chronology ]

          • identicon
            Chort, 8 Aug 2016 @ 1:37pm

            Re: Re: Re: Re: "To promote the Progress of Science and useful Arts, and Incentivize the Creation of Random Noises..."

            Lock who up? The monkey? Or the camera owner? You did not specify.

            The monkey.

            But maybe the camera owner too, for aiding and abetting theft by leaving the camera where the monkey could get it. If they're going to lock people for secondary liability in criminal copyright infringement, then why not?

            reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 8 Aug 2016 @ 2:02pm

            Re: Re: Re: Re: "To promote the Progress of Science and useful Arts, and Incentivize the Creation of Random Noises..."

            Lock who up? The monkey? Or the camera owner?

            Yes. Can't be too careful after all, who knows what that monkey might get up to, and with the camera owner's history of negligently facilitating grant theft camera everyone is probably safer if he's behind bars as well.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Aug 2016 @ 10:37pm

            Re: Re: Re: Re: "To promote the Progress of Science and useful Arts, and Incentivize the Creation of Random Noises..."

            The sad thing is that this being the 21st century, 21st century police would very well lock up both anyway, and it would still be considered clear. Even in the face of video evidence proving otherwise.

            reply to this | link to this | view in chronology ]

            • identicon
              Alya, 9 Aug 2016 @ 4:42am

              Re: Re: Re: Re: Re: "To promote the Progress of Science and useful Arts, and Incentivize the Creation of Random Noises..."

              Even in the face of video evidence proving otherwise.

              When the video contradicts the police, it's clear that the video must be lying.

              reply to this | link to this | view in chronology ]

  • icon
    Gumnos (profile), 8 Aug 2016 @ 11:53am

    Does the opposite apply?

    “Your honor, these representatives for {PETA,big media} are really, really dumb, so we move to declare their copyrights as void…”

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2016 @ 11:58am

      Re: Does the opposite apply?

      A legal correlation between copyright and intelligence would be devastating to the music industry. And I'm not absolutely confident that the movie industry would fare well either.

      But all that doesn't doesn't matter. Pure self-interest will force politicians to disallow such a notion.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 8 Aug 2016 @ 12:05pm

        Wait a sec...

        If we get a precedent that the law has to take into account levels of intelligence, given how often there seems to be politicians and other public figures completely ignorant of what they're saying you could argue that their lack of intelligence means that they should have no say and no vote.

        Changed my mind, go Team Monkey!

        reply to this | link to this | view in chronology ]

        • icon
          Ninja (profile), 9 Aug 2016 @ 3:55am

          Re: Wait a sec...

          Who would have told apes would change the world. Oh wait...

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Aug 2016 @ 8:45pm

          Re: Wait a sec...

          Maybe we had it wrong the whole time...

          "Your Honor, we copyright holders are all shit-flinging monkeys. It therefore stands to reason why our hairier brothers must also enjoy similar protection."

          reply to this | link to this | view in chronology ]

  • identicon
    David, 8 Aug 2016 @ 12:04pm

    Ok, fine.

    But I also want to see them booked for theft if they take any stuff from travelers, and for murder if they kill other apes.

    If they want to enjoy rights, they most certainly also have to obey the obligations of the law.

    reply to this | link to this | view in chronology ]

  • identicon
    Alhena, 8 Aug 2016 @ 12:04pm

    Abolish copyright.

    It was a bunch of money business to begin with.

    reply to this | link to this | view in chronology ]

  • icon
    wereisjessicahyde (profile), 8 Aug 2016 @ 12:05pm

    "....as the shutter clicked" I could be wrong but I thought it was a digital camera. No shutter?

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 8 Aug 2016 @ 12:07pm

    And the next step...

    ... I can't wait to the the "signed" contract giving one of these agencies the exclusive marketing rights...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:09pm

    Still confused.

    Would still like to know how PETA can claim they represent the monkey.... Shouldn't they be able to show a signed legal agreement to represent or transfer rights kind of like an author would have with their publisher?

    Isn't this exactly the type of shenanigans that got some of the Prenda folks into trouble? Claiming to represent people that they don't.....

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2016 @ 12:25pm

      Re: Still confused.

      How do they know his name is Naruto? Has it been established that he is a he?

      He has a twin sister, Maruto. How do they know he's not stealing her copyright?!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2016 @ 12:39pm

      Re: Still confused.

      They went to where the monkey was and rustled and signed a few sheets of paper. The monkey, naturally curious, went to try doing the same thing he saw the humans do.
      That's how he signed them as his representatives.
      These monkeys are really intelligent, haven't you heard?

      reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 8 Aug 2016 @ 12:44pm

      Re: Still confused.

      maybe they should say the camera owns the copyright and argue that as an inanimate object it clearly has rights as well.

      reply to this | link to this | view in chronology ]

    • identicon
      David, 8 Aug 2016 @ 3:29pm

      Re: Still confused.

      It was a flick-poo agreement.

      reply to this | link to this | view in chronology ]

    • icon
      Stan (profile), 8 Aug 2016 @ 4:58pm

      Re: Still confused.

      Obviously it was a verbal contract.

      PETA lawyer: Now, Mr Naruto, by saying "Oo-oo, Ee-ee" you are granting unto PETA, all rights to any and all of your still pictures, in perPETAuity, in exchange for this banana. Do you accept?"

      Naruto: Oo-oo, Ee-ee

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:17pm

    So if the monkey gets copyright, shouldn't we pay in the only currency that is worth anything to monkeys?
    I would like to see the faces of whoever seeks to get paid here when they start recieving boxes of bananas in the mail, hopefully some that have been underway for a few weeks.

    reply to this | link to this | view in chronology ]

    • icon
      Stan (profile), 8 Aug 2016 @ 5:03pm

      Re:

      I could have sworn that I watched a National Geographic show that monkeys gave each other their turds as a form of payment.

      I suggest that anyone using that photograph pay up...by sending turds to their local PETA office.

      reply to this | link to this | view in chronology ]

  • icon
    Gwiz (profile), 8 Aug 2016 @ 12:27pm

    Anyone else get the feeling from the tone of this article that Mike has become completely exasperated with this whole "monkey selfie" kerfuffle.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:31pm

    Sooooo

    Can the monkey count and use money?? If it can't, then what the hell does it need copyright for?

    reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 8 Aug 2016 @ 12:36pm

    Spoken Like an Artist

    "Art is what you can get away with." - Andy Warhol

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:36pm

    PETA needs to face criminal sanctions for 1) pretending to be lawyers and 2) pretending to represent a monkey that in no way shape or form signed any sort of legal representation papers

    Hell, the monkey didn't even go through a psych evaluation to see if it should have a carer given power of attorney over it's financial affairs...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:38pm

    Judge rules "only smart animals may benefit from copyright".

    Oracle, Warner Bros, Sony, Universal, Comcast, Verizon, AT&T, MPAA, RIAA, BPI and hollywood (and others) all stripped of every single copyright they ever owned.....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:40pm

    Is it me or as this brief by Agustin Fuentes continued, did you expect it to devolve into an excuse why he had sex with Naruto?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:41pm

    I know some of the folks at PETA aren't to bright so maybe a monkey is smarter than they are but that doesn't mean a monkey should get copyrights.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 8 Aug 2016 @ 12:41pm

    I think we can all agree the monkey is certainly smarter than everyone at PETA involved in this farce

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:45pm

    You all realize BTW that PETA doesn't really exist?

    They're a corporate front designed to show 'outrage' to get cheap publicity.

    They were paid millions by Nintendo to get 'outraged' by Cookin' Mama when it was released.

    Again paid large sums of money by McDonalds when they introduced the 'big tasty burger' in the UK....

    the list goes on and on. 100% fake organization only there to try to get some column inches in the news....

    reply to this | link to this | view in chronology ]

    • identicon
      Chort, 8 Aug 2016 @ 1:26pm

      Re:

      They're a corporate front designed to show 'outrage' to get cheap publicity.

      Who do you propose is paying them in this case?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Aug 2016 @ 10:43pm

        Re: Re:

        Obviously someone who couldn't afford a corporate front whose personal mission isn't "Let's prove that there's such a thing as bad publicity".

        reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 9 Aug 2016 @ 7:54am

      Re:

      "They're a corporate front designed to show 'outrage' to get cheap publicity."

      But surely in order to be a corporate front, they have to exist, right?

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 9 Aug 2016 @ 4:25pm

      Re:

      They're a corporate front designed to show 'outrage' to get cheap publicity.

      To what end? What corporations benefit from the publicity that PETA gets?

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 8 Aug 2016 @ 12:45pm

    What the primatologist didn't tell us...

    ...is that he is the monkey's brother.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 8 Aug 2016 @ 12:45pm

    If the monkey gets copyright..

    There needs to be a court appointed advocate that insures that PETA doesn't steal all the money for their own purposes rather than for the benefit of the monkey. Since that's what it's really about. I would suggest the trusties of the preserve where Naruto lives, and make sure PETA doesn't embezzle a dime from the little guy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 12:59pm

    It shows how broken copyright is...

    When you can "accidentally" a copyright without intending to do so. It doesn't take a scientist to demonstrate where we're heading here - before long copyrights will be assigned to "mother earth", or gods.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2016 @ 1:53pm

      Re: It shows how broken copyright is...

      Don't give the maximalists ideas, as the Gods are immortal, and so copyright would be eternal, and all they have to do is have an Epiphany and become the gods representatives on Earth.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 1:06pm

    Now Mike!

    Are you species-ist? Monkeys are already in some of the highest levels of government in the world. How can you possibly deny them their rights?


    Seriously go watch honest trailers Zootopia on YouTube and educate yourself.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 1:25pm

    I want some money too

    I have a very intelligent pet rock. It is so intelligent that it thinks really deep thoughts for a very long time in order to uncover the secrets of the universe. Prove me wrong.

    reply to this | link to this | view in chronology ]

  • icon
    bc (profile), 8 Aug 2016 @ 1:40pm

    Valley Speak headlines

    are we going to have more taglines in valley speak?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2016 @ 1:41pm

    The monkey is smart compared to what ...

    a) other monkeys
    b) human beings
    c) PETA lawyers

    reply to this | link to this | view in chronology ]

  • icon
    The Groove Tiger (profile), 8 Aug 2016 @ 1:55pm

    I think he makes a good point. If the incentive the Macaque needs is some clicking noise from a device, copyrights are obsoletes, we just need to make sure artists are rewarded with clicks and whirring noises so that they keep producing works of art.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 Aug 2016 @ 4:53pm

    Someone wake me when they apply for cert to SCOTUS... because you know they will.

    reply to this | link to this | view in chronology ]

  • identicon
    Norahc, 8 Aug 2016 @ 7:09pm

    Next week's story

    Naruto sues PETA for claiming they represent him despite the fact that he never signed the retainer agreement or contract.

    The following week Getty Images will be sued for claiming they own the copyright.

    reply to this | link to this | view in chronology ]

  • icon
    G Thompson (profile), 9 Aug 2016 @ 12:48am

    So basically this Primatologist (does this mean he also studies humans taht are also primates???) is just confirming that age old saying of

    Monkey see, monkey do.

    LOL

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Aug 2016 @ 8:03am

    By analogy then, dumb people are not not entitled to copyrights. This changes the whole game and puts 80-90% of human-created content into the public domain.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Aug 2016 @ 2:51pm

    A monkey wannabe wanting to give monkeys copyrights? The end is near.

    reply to this | link to this | view in chronology ]

  • identicon
    Sambo, 11 Aug 2016 @ 11:33pm

    its only going to get worse

    At the Royal Melbourne Zoo (Australia), for intelligence studies the resident Orangutan's have been given a bunch of things to play with including Ipads with specially designed interactive games.

    One of the females, Kiani has a thing for selfies. She loves both taking them and looking at the results. Vanity is clearly not just a human trait

    So yes, there a literally hundreds of monkey selfies out there.

    Cue the Lawyers!

    reply to this | link to this | view in chronology ]


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