No More Monkey Business: “Selfie” Copyright Case Settled?

Posted on 11/28/2017 by Shin Hee Lee, in Articles, Recent News & Articles

On September 11, 2017, the two parties involved in Naruto v. Slater – publicly known as “the Monkey Selfie” – jointly asked the U.S. Court of Appeals for the Ninth Circuit to dismiss their appeal, and nullify the judgment already made by the lower court. This case has been frequently reported and discussed by both the popular press and serious legal sources, because it unearths our fundamental human assumptions that animals lack a level of awareness to take self-portraits of themselves, let alone raises a copyright question.

In 2011, David Slater, a British wildlife photographer, brought back vivid self-portrait photographs (“selfies”) of macaques from Sulawesi in Indonesia. When Slater was taking pictures near a group of macaques, he noticed their interest in his action of using a camera. Intrigued by the macaques’ attention, Slater fixed some settings and left his camera on a tripod among them to see what they would do with it. To his pleasant surprise, the macaques maneuvered the camera and pressed the shutter button to produce several photographs, which includes the self-portrait of a seven-year old female macaque Naruto. When Slater came back to the UK, his pictures gained enormous popularity and he received remuneration from licensing the photo. But his earnings halted when Wikipedia published the macaque picture and gave the public free access to it, no longer requiring Slater’s permission. Slater lost significant earnings after Wikipedia’s actions, and thus requested Wikipedia to take the photo down. Wikipedia refused Slater’s request by asserting that Slater had no valid copyright on this photo for it had been taken by a monkey. This case ended inconclusively – Slater lacked the financial resources to pursue a lawsuit against Wikipedia.

A few years later on September 21, 2015, the People of the Ethical Treatment of Animals (PETA) filed a lawsuit against Slater in the U.S. District Court, Northern District of California, alleging that Slater “has repeatedly infringed on Naruto’s copyright on the Monkey Selfies by falsely claiming to be the photographs’ authors and by selling copies of the images” for profit. PETA filed this lawsuit in response to Slater publishing his own book that contained the aforementioned images and for which he claimed sole authorship. Although PETA does not own Naruto, they represented themselves as her “Next Friends”[1]. On January 28, 2016, the judge dismissed the case. He stated that “the Copyright Office agrees that works created by animals are not entitled to copyright protection,” and “Naruto is not an “author” within the meaning of the Copyright Act.” Although the judge had dismissed the case, he allowed PETA to file any amended complaint. On July 28, 2016, PETA appealed the case to the Ninth Circuit.

Almost a year later, PETA and Slater requested together to dismiss the appeal and nullify the judgment from the District Court. PETA announced on their website that the case had been settled after an agreement with Slater, who will “donate 25% of future gross revenue from the Monkey Selfie photographs” to help charities that protect the macaque habitat. While the Ninth Circuit had not issued their decision, PETA, Slater, and the community seem to believe that the case was settled. Although on September 13, 2017, the Competitive Enterprise Institute filed an amicus brief to propose that “the panel should not vacate the district court order that is the subject of this appeal.”

While Naruto v. Slater opens debate as to whether a highly intelligent animal should have copyrights to properties normally created by humans, the case could also set a precedent for how copyright cases will evolve with rapid advancements in artificial intelligence. This case has already prompted many public discussions on whether non-human yet autonomous beings should have the ability to claim copyrights, and will most likely be cited in court cases to come.

[1] A person who represents another person who is under disability or otherwise unable to maintain a suit on his or her own behalf and who does not have a legal guardian (Wikipedia definition)

 

-Shin Hee Lee and Anthony Sabatelli, PhD, JD

Shin Hee Lee is a Ph.D. Candidate in the Chemistry Department at Yale University. She is currently associated with the Yale Energy Sciences Institute, where she specializes in organic synthesis of novel light-harvesting dye molecules for solar cells. Prior to attending Yale, Shin Hee obtained her B.S. in Chemistry with High Honors at the University of Michigan – Ann Arbor, during which she published patents and papers on developing synthetic methodologies for fluorinated small molecules.


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