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Share this storyOn Wednesday, a federal appeals court will embark on a legal safari of sorts: animal rights activists, representing an Indonesian monkey named Naruto, are set to argue to the San Francisco-based 9th US Circuit Court of Appeals that their monkey client should be recognized as the lawful owner of property.
The property at issue are a few infamous and viral selfies that the macaque monkey snapped of himself in the Tangkoko reserve on the Indonesian island of Sulawesi in 2011. The monkey's self-appointed lawyers from the People for the Ethical Treatment of Animals are suing David Slater, the British nature photographer whose camera was swiped by the monkey while the photographer was on a jungle shoot.
Slater has published a book with the pictures Naruto took of himself. Now the monkey—via PETA—is seeking monetary damages for copyright infringement from Slater and Blurb, the online publishing platform where the photos appeared.
You're not alone if all of this sounds like some strange monkey business, or a lost scene from the Planet of the Apes.
The federal judge who heard the initial copyright infringement lawsuit ruled last year that animals cannot own intellectual property. The only thing preventing that, US District Judge William Orrick ruled, is Congress. "This is an issue for Congress and the president," the judge ruled when dismissing the case. "If they think animals should have the right of copyright, they're free, I think, under the Constitution, to do that."
Monkey businessPETA claims that Naruto is the rightful copyright owner because, under US copyright law, intellectual property rights are granted to the one who took the picture. That is true, however, but not if you're a monkey. And adding insult to injury, the US Copyright Office says Slater cannot own photos, either, because he didn't take them. Works "produced by nature, animals, or plants" cannot be granted copyright protection, the US Copyright Office says.
PETA said that if Naruto was granted rights to the pictures, proceeds generated from them would be used to assist Naruto and the monkey's habitat.
"Because copyright protection exists primarily to advance society's interest in increasing creative output, it follows that the protection under the Copyright Act does not depend on the humanity of the author, but on the originality of the work itself," PETA told the court in a legal filing. (PDF) "The Copyright Act was intended to be broadly applied and to gradually expand to include new forms of expression unknown at the time it was enacted."
Slater's brief to the court didn't mince words.
"Under controlling 9th Circuit precedent, monkey see, monkey sue is not good law under any Act of Congress unless the legislative text plainly grants non-human animals standing to sue," the brief said. (PDF) "It is undisputed that Congress never plainly said that non-human animals could have standing under the Copyright Act."
Inferiority complexThe publishing site Blurb took the same position.
"While Appellant argues that the Copyright Act permits animals to sue because authorship is not limited to humans, neither the plain language of the Copyright Act nor the jurisprudence interpreting it supports Appellant’s argument," the publisher wrote. (PDF)
A Notre Dame primatologist at the University of Notre Dame told the court in a friend-of-the-court brief that Naruto should prevail.
"In this case," Agustin Fuentes wrote, (PDF) "scientific data necessarily supports the broad interpretation that Naruto has the capacity to be an author and behaved in a way that fits within the definition of artistic expression."
A three-judge panel will hear oral arguments on the dispute Wednesday in San Francisco.