Monkeys and Selfies: PETA Fights for a Macaque’s Rights to His Photos

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by Nadia Kashem, Staff Writer

NarutoSelfie

The photograph above depicts Naruto, a crested black macaque who freely spends his days frequenting the trees of the Tangkoko Reserve on the island of Sulawesi, Indonesia.[1] Unbeknownst to this ape is a legal battle spanning three continents.[2] PETA filed a lawsuit on his behalf to determine whether an animal can be considered an author for the purpose of holding a copyright to its artistic work.[3]

David J. Slater is a British photographer and owner of DJS Photography. He is also the main defendant in the lawsuit. DJS Photography’s website bares an image of a grinning Naruto on the front page, with an option to purchase the selfie prints as a Christmas gift.[4] Slater’s book, Wildlife Personalities, includes the selfies and numerous photographs he took of other animals around the world.

Blurb, a second defendant named in the lawsuit, is a San Francisco-headquartered company that allows users to self-publish books by uploading images and arranging the format and text on its software.[5] Users can then order personal copies or list their books on Blurb’s online store for public purchase. Since 2014, Slater has sold Wildlife Personalities through Blurb and other websites such as Amazon.[6]

The plaintiff, People for the Ethical Treatment of Animals (PETA), is a nonprofit charity and corporation based in Virginia that promotes animal rights around the world. PETA focuses on the idea that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way.”[7] The organization was the center of some controversies in recent years.[8] On September 21, 2015, on behalf of Naruto as his “next friends” (due to Naruto’s legal incapacity), PETA filed the lawsuit against Slater, Blurb, and Slater’s company—the UK-based Wildlife Personalities, Ltd., of which Slater is the sole owner—in the U.S. District Court in the Northern District of California.[9]

The complaint alleges that Slater and Blurb infringed on Naruto’s copyrights to the images. PETA asked the court to 1) recognize Naruto as the author and copyright owner of the photographs with full rights; 2) disgorge the profits that the defendants have made from publication of the photographs; and 3) allow PETA, along with other third parties, to protect Naruto’s interests by ensuring that all proceeds from the lawsuit, minus expenses, will go towards Naruto, the other crested black macaques, and the preservation of their natural habitat.

The photograph above, and others similar to it, were viewed around the world after Wikimedia posted the images to its website in 2011.[10] Since then, the virility of these images has suddenly brought attention to macaques. Macaques are a highly intelligent species, known for their Machiavellian tactics.[11] These monkeys compete for social status, power, and mating privileges.[12] Crested black macaques, in particular, are also critically endangered and their population has plummeted by eighty percent in the past forty years.[13] The legal controversy in question has also brought more attention to this species. Although the lawsuit was filed just a few months ago, the incident began four years prior.

In 2011, amidst the lush forests of Indonesia, the photographer Slater and his guide trekked through a forested region of Sulawesi when they came upon a group of twenty-five crested macaques.[14] Allegedly, it took a while for Slater to gain the monkeys’ trust, until finally the monkeys gathered around to play with his hair and his camera.

The version of events that follow is disputed. PETA claims that the camera was left unattended and that a macaque called Naruto purposely and voluntarily pressed the shutter button—without any aid by the photographer—which caused the images to be produced.[15] Naruto’s relaxed eye contact and funny faces suggest that he recognized himself and was aware of the significance of his actions.

The British photographer’s personal account, however, is quite different.[16] On his website, Slater recounts the story as one in which he set up the camera on a beanbag and turned on the self-timer. He alleges that after the monkeys became bored of grooming him, he had to encourage the macaques to return, at which point they started playing with his camera. No selfies were taken at this point. Slater then set up the camera on a tripod, attached a wide-angle lens, and configured the settings. By then, the monkeys, including Naruto, began showing their teeth in the reflection of the lens and pressed the button hundreds of times, perhaps amused by the shutter noise. The camera captured many random photographs, but some were full portraits of Naruto taken by the monkey himself. The series of images came to be known as the “Monkey Selfies.” Slater alleges that he kept one hand on the tripod the entire time; however, he also says that he moved away to give the monkeys space, which is significant because the self-photography was perhaps not as spontaneous as the photographs appear and, instead, were a product of the actions of both Naruto and Slater.[17]

These actions also affect who is considered the proper copyright holder and may even suggest that Naruto and Slater are co-authors. Under U.S. copyright law, a joint work is defined as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” [18] Assuming for now that Naruto can be considered a copyright holder despite not being human, Slater may also own rights to the photographs if his joint effort contributed to the camera being purposely positioned in such a way that would aid Naruto in capturing those images. Slater’s actions suggest that he intended the monkeys to use the camera for such a purpose. On the other hand, it is unclear whether Naruto intended the image to be captured or if he was simply playing with the shutter button while unaware of the effects of his actions. Therefore, if Slater’s efforts did indeed contribute to the image being taken, then perhaps he may be considered the proper copyright holder even if Naruto is not. However, if Naruto did indeed have the requisite intent, the photographs would not exist if he hadn’t smiled into the camera, made faces, and pressed the button. Indeed, the photographs have been marketed as “Monkey Selfies,” not as simply photographs of a monkey taken by a photographer. Slater’s profits from selling these photographs may be unjust enrichment. Without Naruto’s own actions, the photographs would not have the value they have today because of this significant detail.

As PETA argued, if another human took a photograph with Slater’s camera, that person would own rights to that photograph. Even though a dispute remains as to whether Slater can be considered the author—since he set up the camera and later developed the images despite the monkeys taking the photographs—given that Naruto is not a natural person, perhaps the photographs would be best described as anonymous work. According to the U.S. Copyright Act, an “anonymous work” is defined as “a work on the copies or phonorecords of which no natural person is identified as author.”[19] The Copyright Act, however, does not give any specific definition of the word “author” and does not expressly prohibit animals from having authorship over a work. PETA argued, therefore, that the term can be broad enough to include other animals besides homo sapiens.[20]

For example, the Nonhuman Rights Project has recently filed a writ of habeas corpus in New York State Supreme Court to release Tommy, a chimpanzee, from captivity.[21] The organization requests the court grant Tommy personhood status so that he can be released from a cage in a used trailer lot. If successful, Tommy’s case may open the floodgates to similar claims, as he would no longer be considered property. In December 2014, Argentina granted legal person status to an orangutan named Sandra.[22] Primates’ high level of intelligence may make for a stronger argument in their favor in granting them personhood status.

This case may be significant for other animals too. Elephants in Thailand, for instance, have been known to create paintings using their trunks.[23] However, they are trained to do this; it is beyond their natural abilities. Painting is a joint effort in which the trainer contributes to the final artwork by slightly tugging on the elephant’s ear in different directions, to which the elephant responds by moving his trunk vertically or horizontally. The result is a series of strokes that accumulate into an image of flowers or trees. However, it is unlikely that the elephant recognizes this expression, and because of this, the trainer is perhaps the actual artist, if not a co-author, of the work. Despite this fact, the artwork is sold as the elephant’s own and not as the trainer’s. Marketing the artwork as a painting created by the elephant seems to enhance the painting’s value. Moreover, if the elephant had not dipped the brush in paint with its trunk and then moved it side to side on the paper, “elephant art” would not exist. Therefore, the elephant is an integral part of this process. Although the elephants are called artists, the elephants do not share the legal rights of artists. In addition, elephants can unfortunately be subjected to abuse to create these paintings and are sometimes exploited in the name of art.[24]

Like Tommy’s case, Naruto’s case raises concerns that—should PETA succeed—the floodgates for similar litigation will open.[25] Slater has in turn sued Wikimedia for the use of the Monkey Selfies for copyright infringement.[26] The organization countered that Slater’s rights were not infringed because the photographs were authored by Naruto. Their argument was that Slater does not have standing since Naruto was the one who took the photographs, but because Naruto is not human in order to be considered an author, no one can own the copyrights and, therefore, the photographs are automatically part of the public domain.

Ultimately, the PETA lawsuit was short-lived. On January 6, 2016, in the United States District Court in San Francisco, Judge William H. Orrick held, “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.” He explained that it is an issue for Congress and the President to decide if the law should extend towards animals.[27] It seems that it is not a matter of constitutional interpretation but rather a legislative act that can bring the recognition to animals that PETA seeks.

Despite this result, PETA has not given up and PETA continues to argue that animals should be granted rights.[28] The organization’s general counsel, Jeff Kerr, has said, “We will continue to fight for Naruto and his fellow macaques, who are in grave danger of being killed for bush meat or for foraging for food in a nearby village while their habitat disappears because of human encroachment. This case is a vital step toward fundamental rights for nonhuman animals for their own sake, not in relation to how they can be exploited by humans.” [29]

Even Slater has written in his book, “The recognition that animals have personality and should be granted rights to dignity and property would be a great thing.”[30] The law still recognizes animals as property, but—as bizarre as this case may initially sound—even if initially unsuccessful, the case is still progress towards recognizing animals as creative beings deserving of certain rights given to people.


 

[1] Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938, at *1 (N.D. Cal. Sept. 21, 2015).

[2] PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, This Selfie May Set a Legal Precedent, Peta Blog (Sept. 22, 2015), http://www.peta.org/blog/this-selfie-may-set-a-legal-precedent.

[3] PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, This Selfie May Set a Legal Precedent, PETA BLOG (Sept. 22, 2015), http://www.peta.org/blog/this-selfie-may-set-a-legal-precedent.

[4] DJS PHOTOGRAPHY, http://www.djsphotography.co.uk (last visited Dec. 18, 2015).

[5] BLURB, http://www.blurb.com (last visited Dec. 18, 2015).

[6] Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938, at *5, *8 (N.D. Cal. Sept. 21, 2015).

[7] PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, http://www.peta.org (last visited Dec. 18, 2015).

[8] Michael Winerip, PETA Finds Itself on Receiving End of Others’ Anger, THE NEW YORK TIMES (July 6, 2013), http://www.nytimes.com/2013/07/07/us/peta-finds-itself-on-receiving-end-of-others-anger.html.

[9] Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938 (N.D. Cal. Sept. 21, 2015).

[10]  Matthew Sparkes, Wikipedia Refuses to Delete Photo as Monkey Owns It, THE TELEGRAPH (Aug. 6, 2014, 12:03 PM), http://www.telegraph.co.uk/technology/news/11015672/Wikipedia-refuses-to-delete-photo-as-monkey-owns-it.html. Wikimedia is a nonprofit that runs Wikipedia and makes Slater’s images online available for free.

[11] A term coined after the Renaissance diplomat who forwarded his theory of cunning political practices. See Niccolo Machiavelli, The Prince (1532).

[12] Humans and Monkeys Share Machiavellian Intelligence, Phys.org (Oct. 24, 2007), http://phys.org/news/2007-10-humans-monkeys-machiavellian-intelligence.html.

[13] Laura Tangley, Wildlife Photographers Capture Intimate Portraits of One of the World’s Most Endangered Monkeys, Nat’l Wildlife Federation (May 28, 2014), https://www.nwf.org/News-and-Magazines/National-Wildlife/Animals/Archives/2014/Crested-Black-Macaques.aspx.

[14] David J. Slater, Original Story, Djs Photography, http://www.djsphotography.co.uk/original_story.html (last visited Dec. 18, 2015).

[15] Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938, at *1, *6 (N.D. Cal. Sept. 21, 2015).

[16] David J. Slater, Original Story, DJS PHOTOGRAPHY, http://www.djsphotography.co.uk/original_story.html (last visited Dec. 18, 2015).

[17] Alastair Lawson, Monkey Selfie is Mine, UK Photographer Argues, BBC News (Sept. 24, 2015), http://www.bbc.com/news/world-asia-34346092.

[18] 17 U.S.C. § 101

[19] 17 U.S.C. § 101

[20] Naruto v. Slater, No. 15-cv-4324, 2015 WL 5576938, at *2 (N.D. Cal. Sept. 21, 2015).

[21] NhRP Re-Files Habeas Corpus Case on Behalf of Tommy in New York, NONHUMAN RIGHTS PROJECT (Dec. 4, 2015), http://www.nonhumanrightsproject.org/2015/12/04/nhrp-re-files-habeas-corpus-case-on-behalf-of-tommy-in-new-york.

[22] Tom Bawden, Orangutan inside Argentina Zoo Granted ‘Non-Human Person Rights’ in Landmark Ruling, THE INDEPENDENT (Dec. 22, 2014), http://www.independent.co.uk/news/world/americas/sandra-the-orangutan-inside-argentina-zoo-granted-human-rights-in-landmark-ruling-9940202.html.

[23] Desmond Morris, Can Jumbo Elephants Really Paint? Intrigued by Stories, Naturalist Desmond Morris Sets Out to Find the Truth, DAILY MAIL (Feb. 21, 2009, 9:25 PM), http://www.dailymail.co.uk/sciencetech/article-1151283/Can-jumbo-elephants-really-paint–Intrigued-stories-naturalist-Desmond-Morris-set-truth.html.

[24] Kate Good, Elephant Artists? Here’s Why Making an Elephant Paint is Cruel, Not Cute, ONE GREEN PLANET, http://www.onegreenplanet.org/animalsandnature/why-making-an-elephant-paint-is-cruel-not-cute (last visited Dec. 18, 2015).

[25] Monkey Selfie May Bring Wikipedia to Court, SADAKA LAW GROUP, http://www.sadakalaw.com/news/wikipedia-monkey-selfie-lawsuit.html (last visited Dec. 18, 2015).

[26] Matthew Sparkes, Wikipedia Refuses to Delete Photo as Monkey Owns It, THE TELEGRAPH (Aug. 6, 2014, 12:03 PM), http://www.telegraph.co.uk/technology/news/11015672/Wikipedia-refuses-to-delete-photo-as-monkey-owns-it.html.

[27] Mike McPhate, Monkey Has No Rights to Its Selfie, Federal Judge Says, THE NEW YORK TIMES (Jan. 8, 2016), http://www.nytimes.com/2016/01/09/business/media/monkey-has-no-rights-to-its-selfie-federal-judge-says.html?partner=rss&emc=rss&smid=tw-nytimesarts&smtyp=cur&_r=0.

[28] See Why Animal Rights, PETA, http://www.peta.org/about-peta/why-peta/why-animal-rights/ (last visited March 11, 2016)

[29] PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Update: ‘Monkey Selfie’ Case Brings Animal Rights into Focus, Peta Blog (Jan. 6, 2016), http://www.peta.org/blog/monkey-selfie-case-animal-rights-focus/.

[30] DAVID J. SLATER, WILDLIFE PERSONALITIES (Blurb, Incorporated, 2014).

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