Monkey Prohibited Copyright In A “Selfie”

A federal judge in California recently delivered some bad news to a macaque named Naruto. Hon. William H. Orrick of the U.S. District Court for the Northern District of California tentatively ruled that the animal is not entitled to a copyright in a “selfie” photograph she took after absconding with the camera of British photographer David Slater

A federal judge in California recently delivered some bad news to a macaque named Naruto. Hon. William H. Orrick of the U.S. District Court for the Northern District of California tentatively ruled that the animal is not entitled to a copyright in a “selfie” photograph she took after absconding with the camera of British photographer David Slater. 

The Legal Background 

As previously detailed on the Scarinci Hollenbeck Business Law News Blog, Slater traveled to Indonesia to capture the crested black macaque. While he was shooting, one of primates hijacked his camera and took over 100 selfies. Not surprisingly, one of the photos she took of herself went viral after Slater posted it online.

Wikimedia Foundation, which owns Wikipedia, posted the “selfie” in its online database of public domain images. Upon discovering the image, Slater demanded that the company remove it. He argued that the copyright should vest in him because he owns the camera that captured the image and expended significant resources to capture the shot. Wikipedia refused to take down the photo, maintaining that the selfie is in the public domain because “non-human authors” are not granted an automatic copyright of photographs that they take.

The selfie saga took another strange legal twist when the People for the Ethical Treatment of Animals (PETA) filed suit against Slater and his publisher. The animal rights group maintained that the macaque was the rightful copyright owner. The copyright infringement suit argued:

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. 

The Applicable Copyright Laws 

Under U.S. copyright law, ownership rights vest immediately. However, works must satisfy three criteria in order to obtain copyright protection. They must be in tangible medium, be original, and have author. In this case, the third requirement is causing the most debate.

In response to the initial dispute between Slater and Wikimedia, the U.S. Copyright Office issued guidance expressly stating that works created by non-humans are not subject to copyright protection. In its list of examples of non-copyrightable work, the Office included a “photograph taken by a monkey” 

The Court’s Decision 

The California federal court agreed that animals may not considered authors under federal copyright law. It also held that they do not have standing to sue under the Copyright Act. Its tentative order dismissing PETA’s lawsuit stated:

In line with the Ninth Circuit’s opinion in Cetacean Community v. Bush, 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. The Copyright Office’s Compendium is consistent with the Court’s understanding.

 Of course, this is likely not the final chapter of the strange copyright tale. PETA is expected to appeal the decision to the Ninth Circuit Court of Appeals.

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