The Monkey Selfie Case Gets New Life In Federal Appeals Court

Image courtesy of TBD

When a U.S. District Court shot down Naruto the macaque’s copyright claim over one of the internet’s most disputed photographs, it looked like it might be the legal end of the road for the world’s most embedded wildlife photographer. Yet the case has been appealed, with one prominent primatologist arguing that Naruto and other animals “can be the authors of valuable works of art.”

If you’re somehow just coming to the Naruto saga, here’s a quick recap. In 2011, professional photographer David Slater traveled to Indonesia to photograph macaque monkeys. During the shoot, one monkey — believed to be Naruto, though some contend it was one of the other macaques — grabbed Slater’s camera and took several photos, including the above self-portrait.

Slater wrote about the experience online and posted the monkey selfie, and people almost immediately began to use the image without his permission. He’s succeeded in having some instances of the image taken down, but it remains in the Wikimedia Commons collection of 22 million images and videos that are free to use.

Why? Because the the Wikimedia Foundation, in response to Slater’s challenges, concluded that while Slater owned the camera, the monkey was the actual author of the photo. Since U.S. copyright guidelines explicitly forbid non-human animals from holding copyright, Wikimedia and others say that the image is in the public domain.

The case being appealed now isn’t a claim by Slater, but instead a copyright claim filed in 2015 on behalf of Naruto. That lawsuit not only argued that Naruto is the rightful author of the photo, but that Slater and others owe Naruto for violating that copyright.

In January, the District Court judge granted Slater’s motion to dismiss [PDF], finding that while Congress can write laws that extend legal protections to animals, “the Copyright Act does not ‘plainly’ extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act.”

The appeal [PDF] was filed in late July with the Ninth Circuit. As with the lower court complaint, the appeal is coming from the People for the Ethical Treatment of Animals (PETA) on behalf of Naruto.

“Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would undisputedly be declared the author and copyright owner of the photographs,” reads the appeal.

The U.S. Copyright Office has stated in its most recent compendium that it will not register “works produced by nature, animals, or plants.”

However, the appeal counters that nothing in the Copyright Act “limits its application to human authors.”

“The Copyright Act protects ‘original works of authorship,’ not works of “human authors,” notes the appeal. “[T]he Monkey Selfies have all the attributes required for protection under the Copyright Act. To exempt them from protection on the sole ground that Congress did not specify that animals can be authors assumes erroneously that such specification would have been necessary.”

The appeal argues that the purpose of copyright protection is “to advance society’s interest in increasing creative output,” thus what matters isn’t the humanity of a work’s author, but the “originality of the work itself.”

While the idea of granting copyright to an animal might seem silly to most people, the appeal contends that the Copyright Act was written in a way that it could gradually be expanded to cover new forms of protected works.

As copyright guidance currently stands, a machine would not be granted protection for a work of art it creates, but Naruto’s lawyers note that a court may soon need to consider whether a computer with artificial intelligence can be considered an author.

“The issue now before this Court is therefore of considerable moment to the overarching question of whether the public is entitled to the benefits derived from works of authorship where, as here, the author is not human,” explains the appeal.

This week, Agustin Fuentes, Chair of the Anthropology Dept. at the University of Notre Dame and an expert on human and non-human primate interaction, filed an amicus brief [PDF] in support of Naruto’s appeal.

“The photographs at issue in this case are works of art authored by Naruto, the macaque,” writes Fuentes. “This case is not nearly as unique as one might initially assume, and the best available research strongly supports the conclusion that Naruto easily satisfies the basic requirements for authorship.”

Unlike a piece of driftwood that has been sculpted by chance and the elements, Fuentes contends that the monkey selfie in question may not have been a random action on Naruto’s part.

“Studies have demonstrated that macaques like Naruto manipulate objects for a desired effect, therefore it would be well within the capacity of Naruto’s abilities to manipulate the camera in such a way that he ended up taking a photo of himself,” explains Fuentes. “To put the matter plainly, there is no dispute that Naruto created the images in question. Naruto is, therefore, the author.”

Fuentes notes that courts have used scientific evidence in determining how to apply and consider statutory issues. For example, the Supreme Court decided in 1970 that there was no empirical reason that a jury should contain exactly 12 people, but tempered that eight years later when it decided that five jurors are too few. Likewise, Fuentes points to the SCOTUS rulings in Roper v. Simmons and Atkins v. Virginia that used scientific evidence to determine that juveniles and the intellectually disabled, respectively, are excluded from capital punishment.

“The turn to science is undeniable and can be found in nearly every realm of judicial decision making,” reads the brief. “In this case, Plaintiff is asking for nothing out of the ordinary. It asks only for an interpretation of the Copyright Act that is consistent with an indisputable scientific consensus about the physical and mental capabilities of macaque monkeys.”

Since it could be quite some time before the Ninth Circuit panel ultimately rules on this matter — and there’s always the possibility of an appeal to the Supremes — we wanted to get your opinion on this monkey selfie business: