When wildlife photographer David Slater set up his camera in the rainforests of Indonesia, he hardly expected to ignite a copyright battle with a monkey. Nonetheless, the legal dispute between Slater and Naruto, a crested macaque represented by his “next friends,” People for the Ethical Treatment of Animals (“PETA”) has captured the attention of the news media.

Techdirt & Wikimedia Commons free a monkey

In 2011, Slater, frustrated by his inability to effectively photograph the elusive macaques, conducted an experiment. He set up his camera in such a way that his wide-angle lens might attract the attention of curious monkeys. He placed a remote trigger next to his camera, hoping that the macaques would hit it, and thus take their own “selfies.” This allowed Slater to get clean, close-up shots of the animals. The experiment was a success – Naruto, a six-year old male, took the bait and snapped several shots. Various newspapers and blogs picked up the photographs in the early summer of 2011. However, in July 2011, the blog Techdirt posted a piece arguing that the Monkey 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 in his “selfies” and Slater, having not taken the photos, could not be classified as the author. Soon after, the Monkey Selfies appeared in Wikimedia Commons, which listed them as part of the public domain. Slater wrote to Wikimedia, asserting his copyright and asking that it either pay for the photographs or remove them. His request was denied in August 2014. Nonetheless, Blurb Publishing (“Blurb”) published his book, Wildlife Personalities, in December 2014.  A grinning Naruto graced the cover.

“Next friend” PETA claims monkeys can stand

In September 2015, PETA sued Slater and Blurb on behalf of Naruto in U.S. federal court in California, claiming that they violated Naruto’s copyrights in the so-called “Monkey Selfies.” As the creature to whom the photographs owed their origin, PETA argued, Naruto was the “author” of the Monkey Selfies under the Copyright Act of 1976. While the Copyright Act protects “original works of authorship”, 17 U.S.C. § 102(a), it does not define “authorship” or “author” 17 U.S.C. § 101.

Slater rebutted Naruto’s case primarily by arguing that Naruto did not have standing under the Copyright Act, because animals cannot be authors. In its January 28, 2016 ruling, the District Court agreed with Slater for three reasons. First, if Congress intended to give animals standing under the Copyright Act, surely it would have said so. Second, while “author” may be undefined in the statute, many other case decisions have interpreted the term to mean a “human” or a “person.” None have extended the term to animals. Finally, the U.S. Copyright Office Compendium (the “Compendium”), which provides guidance on issues of copyright law, explicitly states that a work of “authorship” must be created by a human being in order to be copyrightable.

PETA appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit on March 20, 2016. After oral argument in July 2017, the parties began to discuss a settlement and the court granted their motion to stay the appeal proceedings during those talks. The parties reached a settlement on September 8, 2017, with Slater agreeing to give 25 percent of his gross earnings to charities dedicated to protecting the crested macaque and its habitat. In return, PETA dropped its appeal. As part of their joint motion to dismiss the appeal and vacate the judgment, the parties have asked for vacatur, which would nullify the record in the lower court. The Competitive Enterprise Institute, a libertarian think tank, filed an amicus brief on September 13, 2017, urging the court to deny vacatur. The brief argues, amongst other things, 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, although the settlement itself can still stand even if vacatur is denied.

Monkeys v. people in copyright law

The non-legal news media covered the case extensively, taking every opportunity to publish Naruto’s remarkably steady-handed selfies. The implications of the case for the animal rights community are varied, but it also raises several questions for copyright lawyers.

First, what does it mean to be the “author” of a work? In this case, Naruto pushed the button, but Slater engineered the situation, placing the camera and trigger button just so to enable the photographs. As Slater explained, “it was my artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken.” As noted above, the Copyright Act does not define “author.” However, in the 2000 Ninth Circuit case of Aalmuhammed v. Lee, which the District Court quotes in its ruling, we get an insight into what it means to be an author:

“[A]n author superintends the work by exercising control. This will likely be a person who has actually formed the picture by putting the persons in position and arranging the place where the people are to be.”

If one views the Monkey Selfies in this light, Slater should be considered the author even if Naruto were human. This question is still open: the District Court did not decide whether Slater was the author of the Monkey Selfies; rather, it decided that Naruto could not be.

Second, what deference should we give to the Copyright Office’s guidance? In December 2014 – just a few weeks after the publication of Wildlife Personalities, and a few months after Slater’s dispute with Wikimedia – the Copyright Office released the third edition of its Compendium. Section 313.2 of the Compendium states:

“To 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.”

This language closely tracks that of the 1984 Second Edition. However, the Third Edition adds a list of examples of unprotectable works. The first such example? “A photograph taken by a monkey.” We cannot know definitively whether the inclusion of this example was specifically influenced by the Monkey Selfies. However, the District Court judge gave deference to the Compendium when deciding that Naruto is not an author under the Copyright Act. As the District Court wrote, courts should “defer to the Copyright Office’s interpretations in the appropriate circumstances.” The weight given to such interpretations – especially where the Copyright Office opines on a specific example before a matter has been fully litigated – will be an issue for practitioners to watch going forward.

Ultimately, even if the appellate court vacates the lower court’s decision, the “Monkey Selfie” case gives us a glimpse into a jungle of possibilities for future copyright disputes.