More Monkey Business: Copyright and the World’s Most Famous Monkey Selfie

In my other life as an intellectual property lawyer, I receive almost weekly proof that copyright law is the gift that goes on giving. This time it’s in the form of the world’s most famous monkey selfie, which first surfaced, in this blog and others, last year when an earlier copyright dispute came to light. The selfie has resurfaced, this time at the heart of yet another peculiar lawsuit, this one filed by PETA (People for the Ethical Treatment of Animals, Inc.) on behalf of “Naruto,” the monkey who snapped the famous selfie.

For those Rip Van Winkles among us who have just awakened from a ten-year snooze, a “selfie” is a photograph that you take of yourself, typically with a smartphone, and often share via social media. For example, at the 2014 Oscars ceremony, Bradley Cooper took a selfie with Ellen DeGeneres and several other celebrities. Here he is (in the photo on the left) snapping the selfie. The result (on the right) became the most widely shared selfie on Twitter and other social media.

But three years earlier, a far different selfie scenario unfolded while nature photographer David Slater was on vacation in Indonesia. A group of crested black macaques started playing with the camera equipment he had set up. “They were quite mischievous,” he told The Telegraph, “jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it. He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus.”

A few were, however, and Slater included them in his book Wildlife Personalities (with the selfie above as the book cover). The monkey selfies became an Internet phenomenon, and–alas–the center of two separate legal disputes.

The first was a battle with the Wikipedia Foundation, which posted that monkey selfie online in its collection of public domain images and refused to take it down, arguing that Slater didn’t own the picture’s copyright because he didn’t take the picture—the monkey did. And since the monkey can’t own the copyright, Wikipedia argued, nobody does.

Slater’s latest battle is with PETA and Antje Engelhardt, Ph.D., who, as  “next friends” of the macaque, have filed a copyright infringement lawsuit against Slater and his publisher. “Naruto,” the complaint alleges, “is a free, autonomous six-year-old male member of the Macaca nigra species, also known as a crested macaque, residing in the Tangkoko Reserve on the island of Sulawesi, Indonesia.”

The heart of the complaint is the claim that Naruto “has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author.” The Complaint seeks a declaration of Naruto’s rights, an injunction against use of the photos, an accounting of all profits attributable to the infringement and appropriate damages, permission for the Next Friends to administer and protect Naruto’s rights, an order that the proceeds from the sale, licensing, or other use of the photos be used solely to benefit Naruto and his community.

If asked to bet on the outcome of this lawsuit, I’d put my money on Slater and his publisher, but not for any sentimental reasons or for fear that this lawsuit is the harbinger for the real Planet of the Apes. Instead, I’d point to the Copyright Office and the U.S. Constitution:

• The Copyright Office: Chapter 306 of the Compendium of US Copyright Office Practices states: “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.”   The Copyright Office specifies that it “will not register works produced by nature, animals, or plants.” One example it offers:  “A photograph taken by a monkey.”
• The U.S. Constitution: It’s easy to forget that the copyright and patent laws grant to authors and inventors a monopoly over their creations for a certain period–20 years for a patent owner, a lifetime plus 70 years for an author. For a nation that celebrates free enterprise and competition, what is the justification for this grant of monopoly? It’s right there in the Constitution. Specifically, Article I, Section 8, Clause 8, which empowers Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, the justification for giving authors the exclusive rights in their creations is to provide them with an incentive to create art that will ultimately enrich our culture. Thus while monkeys have many endearing qualities, our Founding Fathers realized that granting them an exclusive right in their works would in no way give them an incentive to create those works. And thus the central purpose behind the copyright monopoly has no application outside the human race.

Which is not to say that Naruto’s selfie isn’t far more intriguing than 99% of the selfies taken by humans and posted onto social media. It’s just to say it’s in the public domain for all to enjoy. And while I’ve had to battle a variety of obnoxious animals in three-piece suits in the courtroom, I’m relieved to know that posting this monkey selfie on my blog won’t result in a call from a real gorilla that Naruto hired as his licensing agent.