The two year legal battle over the infamous ‘monkey selfie’ between a photographer and an animal rights group has finally reached its conclusion. Last month, a settlement was reached between the two parties, bringing this copyright drama to a quiet end.
By way of background, in 2011 a macaque monkey, named Naruto, took an image of itself in the Indonesian jungle after it picked up an unattended camera owned by photographer, David Slater. Disputes arose over ownership of the image when it was published on Wikipedia, without Mr Slater’s permission, and he asked for it to be taken down. The People for the Ethical Treatment of Animals (PETA) defended Naruto, arguing that he owned the copyright in the image.
However, Mr Slater contended that he had a valid copyright claim based on the fact that he engineered the situation that resulted in the picture. He befriended the group of wild macaques and set up his camera equipment in such a way that a “selfie” picture might come about.
PETA brought a case on the monkey’s behalf but their claim was dismissed. On appeal, a settlement was reached between the two parties under which Mr Slater agreed to donate 25% of any future revenue from the images to charities dedicated to protecting macaques in Indonesia.
The case raised important legal issues in relation to non-human authorship. PETA argued that Naruto was the author, regardless of the fact he wasn’t human. Mr Slater contested that he was the author as it was his equipment set-up that brought about the capture of the image. On the other hand, Wikipedia argued that copyright cannot subsist where it is created by a non-human, such that the image should belong in the public domain.
However, this does not mean that we can safely say that animals will never hold copyright. The lower court avoided making a decision on ownership, but instead ruled that PETA could not represent the monkey. Therefore, the court found that the monkey lacked standing to sue for copyright infringement but did not deal with the issue of whether or not an animal could own copyright.
PETA chose to bring the case in the United States due to its unique copyright law (Rule 17(c)(2) of the Federal Rules of Civil Procedure,) which permitted it to use the ‘next friend’ option to bring the case. According to Rule 17(c)(2), a ‘next friend’ is someone who, without being formally appointed, can act for the benefit of a person who is unrepresented in an action (usually a child). However, as this scenario is not provided for in other countries’ statutes, if the case had been brought in the UK or EU, there is argument to suggest Mr Slater would have been declared the owner of the copyright even though he was not the one to press the button. This would be a logical finding on the basis that photos taken on a timer belong to the person who set up the photo, even though they did not actually press the button.
Another way this issue could arise again is if another animal rights organisation tried to represent an animal. There are other animals producing work that could be protected by copyright; for example, many people have Instagram accounts for their pets. Evidently, there are increasingly more situations where an animal could have the opportunity to take a photo of itself.
In conclusion, although this particular copyright battle may have reached its end, the case is not determinative on the subject of non-human authorship and the rights of non-human animals. The case raised complex legal questions about the creation of copyright and art by animals. One wonders how often copyright disputes will arise that discuss non-human ownership, such that it will be a long wait before the law in relation to animals and copyright ownership reaches any consensus.
Amelia Skelding 19 October 2017