Recently British photographer David Slater came to a settlement with People for the Ethical Treatment of Animals (PETA) in a lawsuit over who owns the copyright to a selfie taken by a monkey, Naruto, who used his camera to take a photograph of herself on the Indonesian island of Sulawesi. The photograph was taken in 2011 when Mr. Slater, an experienced wildlife photographer, travelled to Indonesia and set up his camera equipment in the jungle where the monkeys lived and waited for them to use it. He then self-published a book containing these photographs through a US corporation he created, which brought his work to the attention of PETA. PETA is concerned that such actions are exploitative of animals, as Mr. Slater profited off the work of Naruto, whom PETA is arguing should be considered the legal copyright owner.
Although the US Federal Court, where Naruto v David John Slater was litigated, awarded copyright to Mr. Slater in 2015, the two parties nevertheless agreed that he would donate 25% of future profits from the photograph to causes supporting the conservation and protection of Indonesian Crested Macaques, the breed of the monkey that took the photo. The litigation has served as a test-case in the question of whether non-humans can be the owners of copyright and whether this could be used as a vehicle for increasing animals’ legal rights.
The case turned on whether the Naruto had sufficient standing under US federal legislation to bring a claim of copyright ownership in a US court. PETA argued that the definition of “persons” has intentionally been left undefined in Title 17 of the United States Code and the Copyright Act of 1976, which governs US copyright law. As a result, they argued that the intention of US lawmakers was to allow a flexible definition of personhood for the purposes of copyright and that this empowers the court to interpret “person” to include animals.
Mr. Slater contended that his work in setting up the equipment for the monkeys means that they he effectively created the photographs and therefore is entitled to their copyright. He was also able to rely on previous US case law concerning animal rights, specifically Cetacean Community v Bush, wherein the court stated that if animals are to be granted standing to sue, legislators must clearly state this in the relevant legislation. The court also pointed to The Compendium of US Copyright Offices Practices (“the Compendium”), published by the US Government, which courts are obliged to follow when interpreting copyright law. It is stated at several points in the Compendium that copyright ownership is limited to human beings.
Based on the above factors, the US court sided with Mr. Slater, stating that copyright ownership for animals is a legislative decision and that Congress must amend copyright legislation and clearly state this for it to be effective. This means any changes to animal rights with respect to copyright issues are policy questions that the legislative and executive branches must address.
Although the District Court ruled that animals lack standing under copyright legislation, the decision was inconclusive on the novel issue of whether animals can be subject to copyright ownership. Therefore, PETA appealed the ruling. The appeal was heard in July 2017, with a decision forthcoming. However, a video transcript of the appeal proceedings shows the judges questioning PETA on several points, including whether PETA has a sufficient connection to the monkey to represent her (the monkey was previously represented by a primatologist at the District level). Slater’s counsel also noted that there were questions of whether the identity of monkey that took the photograph had been sufficiently ascertained, with Slater alleging that a different monkey altogether had taken the photo. The parties went on to argue over other novel copyright-related questions, such as whether the monkey’s offspring would inherit the copyright (two informative articles on the appeal and more bizarre details on the case can be found from the Hollywood Reporter, here and here).
Mr. Slater has told the press that legal fees from this case have bankrupted him and he notes that he would have been prepared to make such an offer to settle, but PETA initiated the litigation without first contacting him. Had the two parties attempted to negotiate an agreement, this issue could potentially have been settled years ago and more money would have been donated to conservation efforts.
Whether PETA continues to pursue this case further remains to be seen, but as we discover more about the intellectual capabilities of non-humans, the question of whether a non-human can own intellectual property will likely persist. The decision by the US courts suggests that any extensions of intellectual property rights to animals will be done through lobbying at a political level to the legislature and not through legal arguments to the judiciary.
Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.