Thing 001652 (Monkey’s Selfies)

In 2011 David Slater, a wild life photographer from the United Kingdom, traveled to Indonesia to take photographs of the rare Sulawesi crested macaques. The crested macaques, also known as macaca nigra or black apes, are a species that today only live in the Tangkoko Reserve, northeast of the Indonesian island Sulawesi (Celebes), and on smaller neighboring islands. Over the last 25 years the number of crested macaques has decreased by approximately 90%. The Tangkoko Reserve is near a village and the macaques are used to encountering tourists and photographers. During Slaters’ visit, he placed a remote trigger next to his camera, hoping that the macaques would hit it, and thus take their own “selfies”. One six-year old male macaque, called Naruto, examined and manipulated his camera. When Slater retrieved his camera, there were several photographs taken by the macaque on it.

In 2011 Slater published some of these photographs under the title Monkey’s Selfies. One photograph was included in The Daily Mail on-line newspaper. It’s copyright notice read: “Copyright Caters News Service”. Slater stated in an interview:

One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy. At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection. They were quite mischievous 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. At first it scared the rest of them away but they soon came back - it was amazing to watch. He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn’t worked that out yet.1

Monkey’s Selfies went viral on the Internet. In July 201, the blog Techdirt posted a piece arguing that the Monkey’s Selfies were in the public domain because neither Naruto nor Slater could hold their copyrights. Naruto, not being a legal person, was incapable of holding a copyright and Slater, having not taken the photos, could not be classified as the author. Wikimedia put a copy of the photo series on-line under the title: Macaca Nigra Self-portrait. The licensing conditions found at the bottom of Macaca Nigra Self-portrait stated that the file was in the public domain because the work was made by a non-human. In 2014 Slater asked Wikimedia Foundation to remove the image. He claimed it led to loss of income. Slater argued that: “as the owner of the camera and instigator of the circumstances in which the pictures were taken, I am the owner of the image”. Despite these complaints, Wikimedia refused to take the image down. Wikimedia argued that Slater could not claim copyright ownership over the photograph. They stated:

A photographer left his camera unattended in a national park in North Sulawesi, Indonesia. A female crested black macaque monkey got hold of the camera and took a series of pictures, including some self-portraits. The pictures were featured in an online newspaper article and eventually posted to Wikipedia. We received a takedown request from the photographer, claiming that he owned the copyright to the photographs. We didn’t agree, so we denied the request. Because the monkey took the picture, it means that there was no one on whom to bestow copyright, so the image falls into the public domain.

Slater, who did not hold the camera, set up the shots or press the shutter, still considered himself the photographer. He stated on NBC’s Today:

In law, if I have an assistant then I still own the copyright. [...] I believe there’s a case to be had that the monkey was my assistant.2

In November 2014 Slater also published the Monkey’s Selfies series in the book Wildlife Personalities.

In 2015 the Copyright Office released a new edition of its Compendium in which it clarified that only works by a human creator will be registered:

The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy state that the work was inspired by a divine spirit.3

In 2015 a group named Next Friends, including the animal rights group People for the Ethical Treatment of Animals (PETA) from the United States and the primatologist and ethologist Antje Engelhardt from Germany, filed a complaint against Slater and Blurb, the publishers of Wildlife Personalities, for the violation of the macaque’s copyright by displaying, advertising, and selling copies of Monkey’s Selfies. Engelhardt had studied the behavior of the endangered Sulawesi crested macaques as part of the Macaca Nigra Project and she claimed that Naruto, took the photos. Engelhardt’s colleagues at the Macaca Nigra Project recognized Naruto in the photographs. Next Friends stated that Naruto should have the right to own and benefit from the copyright in the Monkey’s Selfies in the same way as any other author would. Next Friends alleged that Slater repeatedly infringed on Naruto’s copyright of Monkey’s Selfie by claiming to be the photographs’ author and by selling copies of the images for profit. They claimed that all proceedings from the sale, licensing and other commercial uses of Monkey’s Selfies should fund the conservation efforts for the Macaca Nigra. Slater argued that PETA’s claim should be dismissed because animals such as Naruto are not protected by the Copyright Act of 1976. Next Friends responded that the Act has “no definitional limitation” and is available to anyone who creates an “original work of authorship”.

On January 28, 2016, the court case Naruto v. David Slater took place at United States District Court of California. Judge William Orrick held:

I disagree with Next Friends and follow the rationale of Cetacean. In that case, the Cetacean Community (“Cetaceans”), created by the “self-appointed attorney for all of the world’s whales, porpoises, and dolphins”, filed suit on behalf of the Cetaceans for violations of the Endangered Species Act, the Marine Mammal Protection Act, and the National Environmental Policy Act. Reviewing the district court’s order granting dismissal, the Ninth Circuit examined the language of each statute to assess whether it evidenced congressional intent to confer standing on animals. None did. The court held that “if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly” 4. 5

Here, the Copyright Act does not “plainly” extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit have repeatedly referred to “persons” or “human beings” when analyzing authorship under the Act. [...] “For copyright purposes, however, a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].”6 [...] Despite Next Friends’ assertion that declining to grant a monkey copyright to a photograph “would depart from well-established norms”, Next Friends have not cited, and I have not found, a single case that expands the definition of authors to include animals. 7

Moreover, the Copyright Office agrees that works created by animals are not entitled to copyright protection. It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014 (Compendium). [...] In section 306 of the Compendium, entitled The Human Authorship Requirement, the Copyright Office relies on citations from Trade-Mark Cases (1879) and Burrow-Giles to conclude that it “will register an original work of authorship, provided that the work was created by a human being”. 8 Similarly, in a section titled Works That Lack Human Authorship, the Compendium states that, “[t]o qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants.”9 Specifically, the Copyright Office will not register works produced by “nature, animals, or plants” including, by specific example, a “photograph taken by a monkey”.10

Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art”. Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.11

The court dismissed the complaint by the Next Friends of Naruto and concluded that photographs taken by an animal are not protected as a work of art within the meaning of the United States Copyright Act. PETA reported after the judgment that the Copyright Act protects non-human corporations but not animals and appealed. On March 20, 2016, PETA filed a notice of appeal to the Ninth Circuit Court of Appeals. On July 12, 2017, the court held an oral argument on the matter in San Francisco. On August 4, 2017, lawyers for all parties to the case informed the court that they expected to arrive at an out-of-court settlement in the near future, asking the court not to issue a ruling. On September 11, 2017, a settlement between Slater, Blurb, and PETA was reached, in which Slater accepted to donate 25% of any future revenues from the Monkey’s Selfies to charities that protect the wildlife of monkeys. As part of the agreement the parties have asked to nullify the record in the lower court. The Competitive Enterprise Institute filed an amicus brief on 13 September 2017, urging the court to deny vacatur. The brief states that since Naruto is not a party to the settlement, PETA does not have standing to move for vacatur. The Ninth Circuit has not yet ruled on whether it will grant the motion.

  1. Daily Mail Online, 4 July 2011

  2. NBC, 7 August 2014

  3. Compendium of US Copyright Office Practices, Third Edition.

  4. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Circuit 2004)

  5. Naruto v. David Slater

  6. Urantia Foundation v. Maaherra, 9th Circuit, 1997

  7. Naruto v. David Slater

  8. Compendium of the U.S. Copyright Office Practices §306 (3d ed.)

  9. Compendium of the U.S. Copyright Office Practices §313.2 (3d ed.)

  10. Naruto v. David Slater

  11. Naruto v. David Slater