18 May 2018 4 min read

When a curious macaque monkey picked up a camera on the Indonesian island of Sulawesi in 2011 and decided to snap a couple of selfies, she was blissfully ignorant that her cheeky actions would lead to a lengthy legal battle relating to intellectual property.

The camera that captured the photogenic primate belonged to British nature photographer David Slater. In 2014, a row ensued between Slater and a copyright blog called Techdirt and later Wikipedia, after both refused to remove the image of the grinning monkey from their websites. They argued that as only works created by a human can be copyrighted, then anyone could use the images. The US Copyright Office subsequently ruled that animals could not own copyright. The world famous selfie then became the subject of a complicated debate over whether the photographer had any rights to the images.

In 2015, The People for the Ethical Treatment of Animals (PETA), a registered animal rights charity, sued Slater on behalf of the monkey, who they believe to be a female named Naruto. The identity of the camera friendly monkey was however also in dispute as Slater believed the monkey was actually a different male macaque, having stated:

“I’m bewildered at the American court system. Surely it matters that the right monkey is suing me.”

PETA sought financial control over the photographs, claiming that as the macaque had created the images, she owned the copyright. The case therefore raised important legal questions regarding the potential expansion of legal rights to non-human animals. Slater’s lawyers by contrast, claimed that Slater’s company Wildlife Personalities Ltd, owned the copyright due to the effort Slater had put into the images, such as setting up the camera and tripod, facilitating the correct lighting and allowing the monkeys to play with his equipment. 

Last year US judges agreed with Slater after they ruled 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.” 

However, PETA’s lawyers appealed the decision up to the San Francisco based 9th US Circuit Court of Appeals, claiming Naruto was entitled to the revenue generated from the photographs. A key point of contention throughout the hearings has been whether PETA had a close enough relationship to Naruto to represent the monkey in court in the first instance. It was also debated whether Naruto was harmed by not being recognised as the copyright owner and what the value was in providing a written notice of a copyright claim to a macaque…not your average day in court.

A few days ago, the appeal was dismissed as Slater and PETA reached a settlement agreement whereby Slater will donate 25% of all future revenue created by the images to charities that are dedicated to protecting crested macaques in Indonesia. Naruto may have therefore unintentionally helped save her species, which is at risk of extinction.

So where does this monkey business leave the question of non-human owned copyright? 

The UK’s Intellectual Property Office shares the stance that animals cannot own copyright. 

Whether a photographer can claim copyright will depend on his creative contribution to the work. If Naruto had stolen the camera to create her monkey masterpieces and Slater had exercised no control over the creations then Naruto would be the ‘author’ of the work. Nonetheless, under UK copyright law, an author is not necessarily the copyright owner. For example, it is the director or producer of a film who owns the copyright, not the cameraman. The creative input and effort of the individual will always have to be considered. This may therefore yield some difficult legal questions regarding creations by artificial intelligence…

It stands to reason that if Slater had significantly altered Naruto’s handiwork or put the camera on a timer, then he would indisputably be the owner of that copyright. It is because Slater’s “creative contributions” were not so clear-cut that he became embroiled in the legal jungle of contentious intellectual property.

All we can hope is that the next time the courts debate this matter, it will be for another ‘at risk’ species who will benefit from the media attention. 

Quick – pass that panda a camera!

By Freya Claydon.

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Ryan Lisk

Ryan has helped a vast number of businesses protect and control their intellectual property as well as drafting and advising on consumer and commercial contracts.

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