Monkeying with Copyrights: Who Owns the Monkey Selfies? A Lesson in Copyright Ownership

Jaburg Wilk
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People for the Ethical Treatment of Animals (PETA) recently filed a copyright infringement lawsuit on behalf of a crested macaque monkey, who famously snapped a smiling selfie of himself using wildlife photographer David Slater’s camera. The lawsuit alleges that the monkey, named Naruto, owns the rights to the selfies and that Slater is infringing on those rights by profiting from using the images. Before PETA filed suit, Slater was engaged in a battle over the images with the Wikimedia Foundation, which posted the pictures in its online collection, claiming the photograph was part of the public domain because the monkey, not Slater, actually took the picture. 

PETA filed the lawsuit as Naruto’s “Next Friend,” a legal device that allows a party to represent another who is unable to represent him or herself. PETA’s complaint alleges that 

Naruto has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner. While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. Naruto should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his behalf by the Next Friends.[1]

The lawsuit requests a court order authorizing PETA to administer Naruto’s rights in the monkey selfies “solely for the benefit of Naruto, his family and his community, including the preservation of their habitat.”[2]

The amusing lawsuit highlights an important aspect of copyright law—the determination of who actually owns the copyrights in creative works. 

The relevant statute says that the copyright initially vests “in the author or authors of the work.”[3] Interestingly, the statute does not define the term “author,” and, therefore, does not necessarily preclude authorship by a non-human. The U.S. Supreme Court has explained that “[a]s a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.”[4] The Supreme Court emphasized the need for the work to be original and to possess “some minimal degree of creativity.”[5]

Courts have long held that photographs possess the minimal degree of creativity required because of choices such as posing the subjects, setting, lighting, shading, angles, shutter speed and other camera settings, selection of type of film and camera, and evocation of a desired expression.[6] Because of the creative choices inherent in photography, courts have held that a party need not hold the camera or even push the button to be considered the author.[7] An example would be a photographer who poses the subject, selects the angle and lighting, and arranges every other aspect of the photograph while simply instructing an assistant to push the button to capture the image on command. On the other side of that coin, a party that merely contributes to the photograph through mechanical, noncreative effort does not have claim to the copyrights.[8] And a party may be the author even if he or she does not engage in the physical production of the work at all. One judge explained it thus: 

There are sculptors nowadays who work in huge materials, I-beams, storage tanks, things like that, that are welded together where the sculptor’s contribution is rendered entirely by the giving of instructions to workmen to put a member in a certain position and bolt it to another member and so forth. I think it is clear without question that such participation is authorship.[9]

But the fact that the monkey may have been acting at the direction of the photographer does not necessarily give Slater rights. Many people mistakenly believe that they own the rights to a work that they instructed (and paid) someone else to produce. For instance, a business owner might hire a graphic designer to create a logo for the company. Or a couple may pay a photographer to snap pictures of their wedding. But, the creator of the work owns the copyrights unless the agreement is for a “work made for hire.” The Copyright Act defines a “work made for hire” as (1) a work prepared by an employee within the scope of employment or (2) a work specially commissioned if the parties agree in writing that the work will be considered a work made for hire.[10]

The important point to remember is that, except in an employment situation or if there is a written agreement to the contrary, the copyright owner is the creator of the work—the party who utilized his or her judgment and artistic expression to produce the subject work. 

So, who owns the monkey selfies?

Probably not David Slater. The fact that the picture was taken with his camera and that he made the effort that brought about the work is not enough to create copyrights in the monkey selfies. Slater does not appear to have made any creative choices in the photographs. An argument could be made that the photographer made the creative and conceptual choice to give the monkey his camera, and that the resulting work was intended creative expression. However, in this instance, it appears the monkey took the camera of its own accord, not by Slater’s design. More importantly, Naruto—not Slater—seemingly made the choices about his pose, lighting, and the angle and distance of the camera. Having exercised not even a minimal degree of creativity, Slater probably does not own the copyrights in the monkey selfies. 

Probably not Naruto. Several of the major cases defining “author” include reference to a “person” in the definition.[11] Courts are not likely to grant legal rights to non-humans. The U.S. Copyright Office recently joined the debate on this topic when, after this controversy arose, it implemented a policy that a work must be created by a human to be copyrightable.[12] The Copyright Office even includes “[a] photograph taken by a monkey” and “[a] mural painted by an elephant” as examples of works that are not registrable for lack of human authorship.[13] One could imagine that the copyright office wants to avoid the myriad of problems it will face if it begins to receive copyright applications on behalf of animals. 

Also, the “minimal degree of creativity” requirement implies intent to produce the work. It will be difficult, if not impossible, for PETA to legally prove that Naruto made any creative decisions when he repeatedly pressed the button on the camera and snapped more than a hundred pictures. 

If the Court rules based on lack of a minimal degree of creativity, the finding will have two potential effects on future cases. First, it could negatively impact artists and photographers because human artists and photographers sometimes exercise less creativity than Naruto may have in this instance. Second, it leaves open the possibility that a non-human may be entitled to copyright ownership if it exercises a great deal of creativity to produce the work. For example, Ruby, an Asian elephant who lived at the Phoenix Zoo, was famous for her paintings, the most expensive of which sold for $25,000.[14] National Geographic noted that “not all elephants can paint, and of those that do, some are better than others.”[15] Ruby’s paintings became more complex with experience, and she even chose her own colors. Zoo Consultant Dick George was quoted as saying, “Ruby had a very keen sense of what color, in what sequence, she wanted.”[16]  If such a high degree of creativity could be demonstrated, a non-human could presumably acquire copyrights if the courts—concerned only with a minimal degree of creativity—were willing to grant them such rights. 

Probably Public Domain. The Court will likely take its guidance from the Copyright Office and rule that, since the monkey selfies do not have a human creator, the works are not copyright-protected and are part of the public domain. Works in the public domain may be used by the general public without permission or payment to the original creator of the work. 

Regardless of the outcome, the case of the monkey selfie is not only legally interesting, it is also quite entertaining.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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