While we might share evolutionary ancestors, monkey aren’t people and therefore can’t be awarded copyright protections from photos they take, a judge in California determined.
In what is, by all accounts, a novel case and not one trying to overturn any previous rulings or laws, District Judge William Orrick in the US District Court for the Northern District of California, in San Francisco, ruled that a six-year-old Indonesian macaque monkey cannot own the rights to a series of selfies he snapped after grabbing camera gear owned by David Slater, a British nature photographer who was traveling through the Indonesian jungle at the time.
A lawsuit was filed on behalf of the monkey, called Naruto, by People for the Ethical Treatment of Animals (PETA), which had argued that Naruto’s rights were infringed upon when Slater published the images on his publishing platform, Blurb, and therefore Naruto was owed monetary damages. The US Copyright Office has said Slater can’t be considered the legal owner of the rights to those images, because copyright protections cannot be extended to works “produced by nature, animals, or plants,” according to ARS Technica. Orrick said he would dismiss the suit in an as-yet-unpublished order and called PETA’s case “a stretch.”
Speaking from the bench, Orrick said he wasn’t the correct person to decide the issue of whether animals can or should hold copyrights, or who should have legal protection over artistic creations made by animals. “This is an issue for Congress and the president. If they think animals should have the right of copyright they’re free, I think, under the Constitution, to do that.”
In a statement released after the decision, PETA said its lawyer, David Schwarz, “argued brilliantly. He addressed the court regarding the elasticity of the Copyright Act and said that it doesn’t define ‘author’ and that the matter is fully in the court’s hands to interpret and fill in the gaps in the act because Congress could not possibly anticipate every possible copyright claim or claimant. The judge was complimentary of our brief but believes he needs an express congressional provision of standing for an animal to hold a copyright.” The group maintains that, as Naruto took the images of herself, she is the author and creator of those images and, as a result, should have legal ownership of the images, which are currently in the public domain, at least in the US. PETA also pledges to continue working to secure that legal protection for Naruto, who lives on an Indonesian nature preserve.
J. Michael Keyes, an intellectual property attorney at the law firm of Dorsey & Whitney LLP in Seattle, says Orrick’s decision is not at all surprising, but should the case proceed, it could be a precedent-setting one in the copyright world.
“There are all sorts of statutes that protect animals and allow humans to step into the shoes of those animals and try to effectuate those rights on behalf of animals,” he says. “I think the court was very skeptical–there doesn’t seem to be any indication in the copyright statute itself that Congress had any intention to allow an animal to be considered an author for copyright purposes.”
That goes for paintings created by elephants or other animals as well, Keyes adds. “Animals obviously are endowed with certain minimal creativity instincts, I suppose. The fact that they are able to snap a picture or somehow pick up a brush and make some stripes across a canvas, that’s all great, but that doesn’t mean they should be considered authors and given copyright over their creation.”
While the case may seem kind of frivolous on its face, Keyes points out that “the law changes as a result of controversies that are filed in the federal court. They (PETA) did their best to convince the judge that animals are authors. I’m just not seeing it, though.”
In addition to other issues associated with giving monkeys, or other animals, ownership of copyrights, it would be challenging for an animal that cannot speak to determine what remedy it would prefer should its rights be infringed upon. Keyes explains that “as an author, if your work has been infringed, you can choose your remedies, between getting actual damages or what are called statutory damages. A monkey can’t obviously make that decision.”
Unless, perhaps, a court is dealing with one of the chimpanzees Jane Goodall has spent her entire life working with and studying, or Koko the gorilla and her kittens.