Remember the monkey selfie
? That is the photo that was taken by a macaque monkey in Indonesia, using a camera left on the ground by photographer David Slater. It first became a story back in 2011 when the photographs of the monkey became a bit of an amusing filler piece for some newspapers.
But because we're always interested in the copyright elements of this, we focused on whether or not there was any copyright at all
in the photograph. This has become a story that, apparently, will never die. It started when we received a takedown notice
over the monkey selfie, leading us to explain, in great detail, why the image is in the public domain
. Slater himself eventually chimed in with a ridiculous and wrong understanding of copyright law, in which he insisted that he actually
deserved the copyright. But he was wrong.
The story seemed to die down for a while, but became a thing again last year when Wikipedia also refused
to take down the public domain image. As we noted, the whole fight highlighted how ridiculous the belief is that everything must be owned
. Even more ridiculous was that David Slater then threatened
the public interest group Public Knowledge over the monkey selfie... and then we received a totally laughable
cease & desist based on a questionable scheme claiming some sort of "personality rights" for the monkey under the laws of Guernsey (don't ask).
While all of this was going on, Sarah Jeong wrote a pretty funny satire piece about why the monkey should get the copyright
... but it appears that the publicity hounds at PETA (People for the Ethical Treatment of Animals), who are known for their ridiculous publicity stunts, decided that this was a cause worth taking up and have now filed a lawsuit on behalf of the monkey against
the photographer David Slater. Think of it as abusing the legal system for publicity.
Okay, while we've gone over the legal arguments in great detail in the past, let's do a quick recap. There are three general arguments about the copyright in the photo: (1) Slater has the copyright (2) the monkey has the copyright or (3) no one has the copyright and the image is in the public domain. (1) is clearly not true. In order to get the copyright you need to take the picture or have the copyright assigned to you, which would require the photographer to go through the process of assigning the copyright to you. Slater said from the beginning that he left the cameras on the ground and the curious monkeys took the photograph, so by his own words, he made it clear that he was not the photographer and does not get the copyright. On (2), copyright law is pretty clear that only humans can get copyrights, and thus the monkey cannot have the copyright, nor can it assign the copyright to a human, because it never had it in the first place. So the remaining option is (3) the image is in the public domain.
In fact, last year the Copyright Office itself weighed in on this with its Compendium of US Copyright Office Practices
, which pretty clearly states no copyright on monkey selfies:
So that brings us today's news, in which PETA has filed a copyright lawsuit, in the name of the monkey
against the photographer, claiming that the monkey holds the copyright and that Slater has infringed
. We agree that Slater does not hold the copyright, but the idea that the monkey does is wrong too. Also... um... how the hell does PETA have the right to represent the monkey or standing to file this lawsuit? But, yes, the filing is in the name of the monkey, which is -- according to PETA -- Naruto.
From the lawsuit
Naruto has the right to own and benefit from the copyright in the Monkey
Selfies in the same manner and to the same extent as any other author. Had the Monkey
Selfies been made by a human using Slater’s unattended camera, that human would be
declared the photographs’ author and copyright owner. While the claim of authorship by
species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17
U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to
extend to any original work, including those created by Naruto. Naruto should be afforded
the protection of a claim of ownership, and the right to recover damages and other relief
for copyright infringement, as asserted on his behalf by the Next Friends.
The lawsuit then requests that the court not only give the (non-existent) copyright to the monkey, but then allow PETA to administer the copyright on the monkey's behalf. The lawsuit doesn't even attempt to get around the whole "not by a person" thing other than to claim that these monkeys are really special. They may be, but it doesn't change the law.
Also, it barely seems worth mentioning, but PETA seems to also ignore that the statute of limitations on copyright law is... three years. And the photograph was taken over four years ago. As Matt Schruers notes
, it appears that the plaintiff, Naruto, was, well, "monkeying around" all this time, rather than filing a lawsuit in the allowed time period. Amazingly, PETA got a decently large and well known law firm, Irell & Manella, which handles lots of copyright cases, to file this joke of a lawsuit.
This case can and should be tossed out for a whole variety of reasons from standing to statute of limitations to simple basic copyright law. But, again, if it's all just yet another publicity stunt by PETA, it's not clear that they care. But, using the judicial system for publicity stunts is generally frowned upon. Whether or not this monkey business is sanctionable
is something that a judge may have to explore eventually.