This Monkey Selfie Court Case is Totally Bananas

Naruto’s viral selfie! via SLATE

The selfie shooter is the copyright holder of a selfie. But what if the selfie shooter is a monkey, not a human being?

Nature photographer David Slater recently settled in the now infamous “monkey selfie” court case brought against him by PETA on behalf of Naruto, a crested macaque in Indonesia. Slater, who owns Wildlife Personalities Ltd., agreed to donate 25% of future revenue made off of Naruto’s images to charities that protect crested macaques in Indonesia. PETA argued that Naruto the monkey owned the copyright, and that by publishing it without Naruto’s permission, Slater and his company had infringed upon it. The case caught attention of people nationwide because of the implications that it raised through a mere selfie.

The monkey selfie case was first brought up by People for the Ethical Treatment of Animals in 2015, suing on behalf of the monkey, seeking to secure copyrights and thus financial control to Naruto. U.S. District Judge William Orrick ruled in favor of Slater last year, stating that “while Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act.” But PETA appealed, taking the case to the San Francisco-based U.S. 9th Circuit Court of Appeals. Andrew J. Dhuey, Slater’s attorney, did not comment on how much money the monkey selfies had already generated.

Despite the ensuing selfie copyright nightmare, the story of Naruto and David Slater the nature photographer began rather idyllically in 2011, when Slater was in Indonesia photographing crested macaques in Indonesia.

The story of the selfie also began like many selfies do: By accident, randomly, and for fun. After gaining the trust of the monkeys, one of them, Naruto, swiped Slater’s camera and started taking selfies.

As any of us do when taking selfies, we do not take just one or two or three – we take many, until the least worst one surfaces. Maybe that one perfect selfie is even great. Taking selfies is hard. Naruto took many selfies, but only one went viral.

The monkey’s selfie-taking turned Slater into a known photographer.

PETA took Slater to court, arguing that there’s nothing in U.S. federal copyright law that limited copyright protection to human beings. PETA lost a lower court ruling, which a federal judge ruled that the monkey did not own rights to the image because he is an animal and not a human. But after that, PETA appealed and took it to the 9th Circuit Court of Appeals in San Francisco, which was filed on March 20. Crested macaque are critically endangered, and any damages were to benefit Naruto, his family, and their habitat.

But oddly, another element of this selfie aside from the assumed copyright, which is that the selfie-shooter is the copyright owners, was that originally the U.S. Copyright Office considered this work in the public domain. They accepted that the monkey was the creator of the selfie, not the nature photographer David Slater, but they did not originally grant the monkey with that copyright.

The picture is “property of the macaque, whose name is Naruto. And Slater owes Naruto some money,” writes Jordan Weissmann for SLATE. In the motion by Slater’s lawyer, asking to dismiss the suit, the introduction begins like this: “A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the setup for a punchline is really happening.”

In any case, Slater’s lawyer argued that his company, Wildlife Personalities Ltd., owned worldwide commercial copyrights to all of the images, thus nullifying this case. In other words, “monkey see, monkey sue” should not hold up in court:

“Slater argued that he engineered the photographs in 2008 by traveling to an Indonesia jungle, spending three days with a group of monkeys to gain their trust and deliberately making his camera accessible to the animals to take photographs.”

The arguments were pretty fascinating and certainly went well beyond the selfie itself(ie), which is the purpose of my book too – to provide context for the selfie, rather than literally take the selfie at face value.

Angela Dunning, an attorney for Blurb, the self-publishing site that published Slater’s book, argued that PETA, not Naruto the monkey, would benefit from the work because, well, he is a monkey and they are an organization run by humans.

But it did not matter, because Slater lost. In this case, a selfie was used as a way to decide that animals have the same copyrights as humans, which could set an interesting precedent for any self-respecting dog that wants to selfie.

As Jeffrey S. Kerr, Esq, writes for Alternet, this case could also serve as a harbinger of the versatile ways that PETA as an organization can fight on behalf of animal rights:

“While PETA’s monkey selfie lawsuit focused on one primate, Naruto, its aim is now more far-reaching. As long-held traditions and notions fall by the wayside—animal circuses, for example, are being relegated to the dustbin of history—there’s no doubt that granting animals fundamental rights is the next step in our cultural and ethical evolution.”

Selfie copyright is a key issue discussed in chapter 3 of my forthcoming book, The Selfie Generation. As I write in the introduction:

“Copyright means almost nothing on the Internet, where remix culture rules, fair use sometimes works, and social media sites take little to no responsibility for the content that is posted and instead require users give the network a limited license of their own content.”

Yet in this case, selfie copyright shifted because of a case brought against a photographer by an outside organization. In other words, thanks to some random selfies shot by a monkey in Indonesia, an endangered species will have a bit more funding, albeit at the expense of a random freelance photographer.

This post was edited by the one and only @AlexTheHuntsy! Follow him and @aliciaeler on Twitter!