Artistic Intent or Monkey Play?

Penguin Painter

Monkey see, monkey do, monkey… sues for copyright? In a sense, that is what happened when a monkey named Naruto got ahold of wildlife photographer David Slater’s camera in 2011 and snapped a selfie with him grinning for the camera.¹ Slater went on to publish the image in his book and in 2015 PETA brought suit on behalf of Naruto for the monkey’s rights to the photo.² PETA argued that Naruto was the rightful owner because he snapped the photo himself and copyright law grants ownership rights to the person who takes the image.³ However, the lower court disagreed, ruling in early 2016 that animals cannot have copyright and throwing out PETA’s case against Slater.⁴

After filing an appeal in the Ninth Circuit and attending a hearing in July, the animal rights group and Slater settled the case on September 11 of this year.⁵ As part of the settlement, Slater agreed to donate 25 percent of future earnings from the photo taken by the monkey to charitable organizations that protect Naruto and other crested macaques.⁶ Most notably, however, is that the attorneys on both sides asked the Ninth Circuit to drop the lawsuit and vacate the lower court’s decision that found that animals were not included in copyright law.⁷ This could mean that the question of whether animals can hold copyrights may come up in future litigation.

Before I continue, I would like to state for the record that I love animals. But that doesn’t mean I am going to advocate for their intellectual property rights. If we allow monkeys and other animals copyright in works, that could lead us down the rabbit hole (wait, wrong animal pun) of questions on how copyright law would apply.

First off, there is the basic question of whether an animal can be considered an “author”. The Copyright Act covers “original works of authorship”, but the term “author” is not defined within the statute.⁸ However, it is difficult to see how an animal could be an author when there is no real proof of intent. The U.S. Copyright Office even included this issue in their Compendium by stating that a work of authorship only qualifies if it is created by a human, specifically listing “a photograph taken by a monkey” as an example of uncopyrightable material (along with works purportedly created by divine or supernatural beings, but that is a discussion for a whole other blog post).⁹

Then, there are also logistical issues. Copyright comes with financial benefit, but how exactly would an animal be paid? Could the work ever be licensed? Getting the consent of a monkey seems to be a bit far fetched. And then there is the question of copyright infringement. A Circuit Judge on the panel for the Ninth Circuit hearing regarding the appeal addressed the issue when he asked PETA’s attorney, “What’s the injury? There’s no way [for the monkey] to acquire or hold some money, which court would give. There’s no loss to reputation. There’s not even an allegation that the copyright could have benefited somehow Naruto. What financial benefits apply to him? There’s nothing.”¹⁰

Even though the question of whether animals can obtain copyright raises concerns and remains unanswered, Naruto can keep on smiling with his substantial settlement.