Monkeying Around with Copyright Law

Monkeying Around with Copyright Law

David Slater via Wikimedia Commons

The two-year ‘monkey selfie’ dispute between David Slater, a British Wildlife photographer, and the People for the Ethical Treatment of Animals (PETA) has driven copyright lawyers bananas and finally reached a settlement.

Monkey See. Monkey Do. This legal battle began in the Indonesian jungle when Naruto, the macaque monkey, snapped a ‘selfie’ using Slater’s unattended camera. Slater published the selfie and it ended up going viral, making its way to Wikipedia’s free-to-use website. Slater asked the site to take down the photo claiming he owned the rights, however, Wikipedia asserted that the photo is uncopyrightable because the true photographer was not a human and couldn’t hold a copyright. PETA, on behalf of Naruto, brought a copyright infringement lawsuit seeking financial control claiming that the monkey’s work was infringed upon and that he should benefit from the photo. In response, Slater filed a motion to dismiss the case, arguing that US law did not give animals the standing to assert copyright ownership.

On Monday, attorneys for PETA and Slater said they have agreed to a settlement. Attorneys for the group and the photographer asked the San Francisco-based 9th U.S. Circuit Court of Appeals to dismiss the case and throw out a lower-court decision that said animals cannot own copyrights. Naruto will “get” a quarter of the royalties from the selfie (Slater will donate 25 percent of the revenue of the image to charities protecting Naruto’s habitat in Indonesia, on behalf of Naruto.)

“PETA and David Slater agree that this case raised important, cutting-edge issues about expanding legal rights for non-human animals, a goal that they both support, and they will continue their respective work to achieve this goal,” Slater and PETA said in a joint statement.

All this monkey business raised two interesting questions regarding copyright law: Can an animal even get a copyright? And can a human get the copyright of a photo an animal took?

To qualify for copyright protection in the United States, a piece of work must meet three criteria:

  • It must be fixed in a tangible medium. (In this case, that would be a photograph.)
  • It must be original. (Overall, originality is a low threshold, and most likely satisfied by the monkey’s selfie.)
  • And the work must have an “author.” In the U.S., the term “authorship” implies that the work comes from a human being. (An animal is not an individual, and therefore not an author under the Copyright Act.)

“So, can humans acquire rights in works created by animals? One view would be that (a) if animals are your property, and (b) they create property, then (c) the property of your property is also your property. A dairy farmer owns the egg laid by a chicken; kittens become the property of the owner of the cat that birthed them.”

But in this case, because the monkey cannot create a copyrightable work, that work can never be copyrightable. Now, if the photographer takes a work by an animal and turns it into their own painting or creative photo, then he acquires rights in the new creation. The monkey’s selfie by itself however, goes under the rule of that which is created by Mother Nature, is owned by Mother Nature.



Copyright Basics

Copyright, a form of intellectual property law, is a legal right that grants the creator of an original work exclusive rights for its use and distribution. Once in tangible form protection is automatic for original works, including literary, dramatic, musical, and artistic works, such as poetry, novels, photos, movies, songs, computer software, and architecture.

From the second you create the work (take the picture, write the story, record a video, etc), you own the copyright for life, unless you give any of your rights to someone else. All facts and ideas are in the public domain as you can’t copyright an idea, only the actual production of an idea can be protected. Registering your materials in the Copyright Office in the Library of Congress will give you a large advantage should you need to sue someone who has infringed on your work.