This weekend’s “War for the Planet if the Apes” portrays a simian uprising for control of the planet. A San Francisco court case has lower stakes — who owns the rights to a monkey selfie — but it could lead to animals enjoying more of the rights that humans do.
A (human) lawyer, arguing on behalf of a monkey named Naruto, argued this week that a primate named Naruto owns the copyright to a grinning, toothy selfie. Naruto took the picture in the wilds of Indonesia after a photographer momentarily stepped away from his camera.
Of course, the photo went viral, as cute animal photos do. And People for the Ethical Treatment of Animals sued photographer David Slater, claiming that the copyright for the selfie belongs to Naruto.
During oral arguments on Wednesday, three judges on the U.S. Circuit Court of Appeals for the 9th Circuit appeared skeptical of PETA’s argument that an animal can be a copyright owner.
“Can you point to a U.S. Supreme Court holding that says “man and monkey are the same?” Judge Carlos T. Bea asked David Schwarz, a lawyer for the PETA.
Andrew J. Dhuey, Slater’s lawyer, blasted PETA’s lawsuit as frivolous.
“Monkey see, monkey sue will not do in federal court,” Dhuey told the judges. “It makes no sense to allow a monkey to sue for copyright infringement.”
The heart of the case is whether an animal can be an “author” of a work and has the right to sue — called “standing” — for infringement under the U.S. Copyright Act. Bea noted that the law only mentions a “person” having right to sue for copyright infringement.
PETA argued that the monkey — or more accurately, a Sulawesi crested macaque — owns the copyright in the photo. PETA sued using the monkey’s name so the case is called Naruto v. Slater.
PETA said it would use funds from the sale of the photo to protect Naruto, his family and their habitat.
Bea questioned how the Copyright Act would work for Naruto when it allows a copyright owner’s surviving spouse and children to inherit copyright ownership, even illegitimate children.
The judge asked PETA’s attorney, “In the world of Naruto, is there legitimacy and illegitimacy? Are Naruto’s offspring children as defined in the statute?”
Angela Dunning, a lawyer for Slater’s photography company, Blurb, told the three-judge panel that PETA is “not even sure they have the right monkey.”
When the photo first went viral, Slater claimed he owned the copyright because the photo was taken with his camera, but the U.S. Copyright Office disagreed. The Copyright Office even amended its online guide on what isn’t copyrightable, and now lists a work by a “monkey” as not copyrightable.
Wikimedia refused to take down the photograph when Slater said he owned the copyright and demanded it be taken down. Wikimedia concluded the selfie is in the public domain because it can’t be copyrighted by a non-human.
Wikipedia even has an entry called “monkey selfie” detailing the saga.
The 9th Circuit previously ruled that whales and other ocean creatures cannot sue for oceanic violations of environmental laws in Cetacean v. Bush. That decision probably dooms Naruto’s case.