The Law and Business of Social Media
May 23, 2018 - Copyright, IP, Litigation

Monkey-Selfie Case Returns—To Court & (Maybe) a Theater Near You

Monkey-Selfie Case Returns—To Court & (Maybe) a Theater Near You

I confess: I have mixed emotions regarding the iconic “monkey-selfie” photo and all the hubbub it has created.

Don’t get me wrong; I think monkeys are wonderful, and the photo deserves its iconic status. Who can resist smiling while viewing that famous image of Naruto, the macaque monkey who allegedly snapped the self-portrait?

And the monkey selfie has been a boon to legal blogs. Our own posts regarding the photo have been among the most viewed content on Socially Aware (one of our posts prompted a call from my mother, who felt strongly that Naruto should be entitled to a copyright in the photo).

But, let’s face it, in an era where technology disruption is generating so many critical and difficult copyright issues, the law relevant to the monkey selfie is pretty straightforward, at least in the United States. As the U.S. Copyright Office states in its Compendium II of Copyright Office Practices, for a work to be copyrightable, it must “owe its origin to a human being,” and that materials produced solely by nature, by plants or by animals do not count. U.S. courts have reached the same conclusion. (Although I note that David Slater, the nature photographer whose camera was used to take the photo, claims that he—and not the macaque—is in fact the author of the photo for copyright purposes.)

Admittedly, there is an interesting discussion to be had around whether the law should be changed (especially given the fact that, under U.S. law, corporations can be authors for copyright law purposes). Moreover, media accounts of the monkey selfie story often miss the even larger issue: If human involvement is required to create copyrighted works, what does that mean for the growing number of news articles, music and other works created entirely by artificial intelligence (AI), or videos generated by Internet of Things (IoT) sensors, often as a result of considerable investment by the companies employing such AI and IoT technologies?

So, with that background, you’ll understand why it is with some trepidation that I turn to recent developments in Naruto v. Slater, the so-called “monkey-selfie suit,” which is back in the headlines again.

Last month, after refusing to grant a joint motion to dismiss that the parties filed after having reached a settlement, the U.S. Court of Appeals for the Ninth Circuit held that: (1) People for the Ethical Treatment of Animals (PETA) lacked standing to sue on behalf of a monkey, and (2) animals cannot sue for copyright infringement.

The Background

PETA brought the case to challenge photographer David Slater’s copyright claim on portraits—including the famous monkey-selfie image—that were taken when the macaque Naruto allegedly intentionally and repeatedly pressed the shutter on a camera that Slater had set up in Indonesia. After oral arguments in the Ninth Circuit, the suit settled, with Slater agreeing to donate 25% of his revenue from the photos to charities that protect the macaque’s habitat.

Ninth Circuit Snubs the Settlement…

But on April 13, 2018, the Ninth Circuit refused to grant the parties’ joint motion to dismiss the case, holding that “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.”

…And Then Decides the Case on Its Merits

When, on April 24, the Ninth Circuit finally did decide the case on its merits, the court cited Cetacean v. Bush, a case holding that animals can’t sue unless Congress makes it clear they can. But, as The Verge points out, the three-judge panel that wrote the opinion and its concurrence devoted a lot of text to expressing their disapproval of similar lawsuits that are brought by organizations like PETA and, according to the court, use “unwitting pawns” in pursuit of “ideological goals.”

The Ninth Circuit concluded, based on Cetacean and “the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.”

Hollywood Came Calling

Because PETA is unlikely to file another appeal, the drama between Naruto and Slater probably won’t play out again in court, but it might get a second life on the big screen. Condé Nast Entertainment has acquired the rights to Slater’s life, according to The Hollywood Reporter. Though that studio’s films are usually based on stories that have run in its glossy magazines, in this case Condé Nast “skipped” publishing a Naruto v. Slater story, buying “life rights first so that it could move quickly on a movie.”

With Naruto’s tale coming to the big screen, copyright lawyers can expect to continue to be peppered with monkey-selfie questions at family gatherings and other social events, perhaps for years to come.

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For even more on the monkey selfie, please see the following Socially Aware articles: Monkey in the Middle of Selfie Copyright Dispute and Monkey Selfie Redux.