Back in 2011, nature photographer David Slater set up shop in the jungles of Indonesia to take photographs of Celebes Creste Macaques. He brought cameras and tripods and began setting up, adjusting the cameras’ settings and preparing to capture the images. During that time, one of the monkey’s curiosity got the better of her and she took one of the set-up cameras and started playing with it and – accidentally or on-purpose, no one really knows – snapped some photographs of herself. The ‘monkey selfies’ were born.
Slater later distributed these photos presuming he owned the copyright. After all, it was his camera, he set it in motion. The blog Techdirt argued that Slater could not hold the copyright because the monkey had snapped the picture, in essence, choosing the framing of the subject matter. The monkey selfies were uploaded to the multimedia repository, Wikimedia Commons, a site that only accepts media licensed under a free content license or in the public domain. Slater requested that the photos be removed. Wikimedia Commons refused taking the position that the pictures were public domain material as taken by a monkey. Ultimately, on December 22, 2014, the U.S. Copyright Office updated its compendium to clarify its stance and it explicitly now states in Section 313.2, “to qualify as a work of “authorship” a work must be created by a human being” and sets forth examples of what is not entitled to copyright ownership including, “a photograph taken by a monkey.”
And lest there be any doubt, Copyright Office regulations are upheld unless they are “arbitrary, capricious, or manifestly contrary” to the provisions of the Copyright Act. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). In the meantime, Slater has published a book, Wildlife Personalities, featuring the Macaques photographs. Copyright or no copyright, he can publish a book using the photographs, right? Either he owns them or no one owns them, right?
Fast forward to yesterday, September 22, 2015 (exactly nine months of gestation), the People for the Ethical Treatment of Animals (“PETA”) filed on behalf of Naruto (the so named Macaque who snapped the selfies) in the Northern District of California, a complaint for copyright infringement against none other than Mr. Slater! See Case No. 15-cv-04324 (link here). The Complaint alleges that Naruto is a ‘free, autonomous six-year-old male’ and that he took a number of photos including the ‘monkey selfie.’ Ignoring for the moment that there is some ambiguity as to whether these are male or female photographs, the Complaint is deficient as a matter of law. To state a claim for copyright infringement one must allege and prove: 1) ownership of a valid copyright; and 2) copying of original elements of the copyrighted work. See 17 U.S.C. § 501. Typically, in the U.S., a copyright Registration is required to bring a claim. PETA attempts to circumvent this requirement by alleging that the works in issue were made in Indonesia and are not United States Works and therefore no copyright registration is required. However, that does not relieve the plaintiff from proving ‘ownership of a valid copyright.’
Given the U.S. Copyright Office regulations that copyright ownership is per se unavailable for “a photograph taken by a monkey,” as a matter of law, PETA cannot maintain this action. PETA must first successfully petition the U.S. Copyright Office to change its policies with respect to interpretation of the Copyright Act, or that its current interpretation is “arbitrary, capricious, or manifestly contrary.”
PETA may have picked the wrong defendant. It is interesting that PETA names Slater as a defendant and not Wikimedia Commons. After all, it is Wikimedia Commons who still lists the images for all to use, having taken the stance that no one owns the copyright. That perhaps, is where the more interesting legal debate would lay.
And, can PETA actually believe its own words that “Slater did not assist Naruto’s authorship”? Could Naruto order a camera from Amazon? Could Naruto actually adjust the F-stops and the white balance in the way that Slater did? In fact, is the only requirement for authorship that you pressed the button? What if the camera had simply slipped and dropped and the button was pressed when the camera hit a rock and the same picture had resulted? Would Slater own the copyright then? I think, so long as you set the event in motion, intending to create a new work, and you are what could be stated to be the ‘ultimate procuring cause,’ you are the copyright owner. Perhaps Mr. Slater can actually use this lawsuit to his benefit and prove that he is in fact, the rightful copyright owner, despite the input from his assistant, Naruto.