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Don’t Monkey Around With Selfie Copyrights

On Behalf of | Nov 23, 2015 | Legal Blog


Being an attorney, it can be somewhat embarrassing to acknowledge some of the lawsuits that get filed in U.S. courts. The case of monkey selfie is one such case.

It seems that wildlife photographer David Slater was taking photographs of Sulawesi crested macaques in Indonesia when one of the macaques, a male named Naruto, got ahold of Slater’s camera and took several photographs of himself. Some years later, Slater used some of those photographs in a self-published book of wildlife photographs he produced on Blurb, Inc.’s self-publishing Website entitled Wildlife Personalities. However, he failed to obtain Naruto’s permission and didn’t agree to pay him any royalties for Naruto’s selfies.

Incensed by Slater’s apparent copyright infringement, PETA (the organization People for the Ethical Treatment of Animals) filed suit against Slater and Blurb on behalf of Naruto in September seeking monetary damages it pledged to use on behalf of Naruto and other monkeys living in Naruto’s local monkey community. In the Complaint filed in U.S. District Court in San Francisco, PETA argued, “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.”

Not surprisingly, neither Slater nor Blurb appreciated PETA’s lawsuit and both have filed motions to dismiss citing, among other things, inconsistences in the pleadings which call into question whether it was even Naruto or another monkey, a female, who snapped the quick selfies. The better argument in the moving papers seems to be Naruto’s lack of standing to sue under U.S. copyright law given his lack of being human.

The U.S. Copyright Office also has taken the position that the photos must be the product of human authorship in order to be subject to copyright protection making it unlikely PETA (or the monkey) will get much out of the lawsuit other than publicity. The motions are scheduled to be heard in court on January 6, 2016.

Why It Matters. Luckily for copyright law, animals taking selfies (or creating other copyrightable content) and then being infringed by humans using those selfies without their permission (one has to wonder how you would get permission from an animal anyway) is not very common. However, a primates being named as a litigant is not unprecedented.

A few years ago, while I was representing a business entity that was being transferred to the adult children of the founder (who had recently passed away), the founder’s widow was represented by a couple of Los Angeles attorneys who took themselves and all their clients very seriously. We were in court one morning and one of them mentioned that she couldn’t make the next hearing because there was a conflicting hearing on the same date in a matter involving Michael Jackson’s pet monkey, Bubbles. When I asked about the case, they explained that they represented the monkey in seeking to maintain the lifestyle he had grown accustomed to during Mr. Jackson’s lifetime and as owner of Bubbles. I was convinced they were pulling my leg and when I laughingly asked what was really going on, they sternly explained that monkeys had the same rights as humans in court and then accused me of being “unenlightened.” I don’t know how Bubbles’ case turned out, but I do know he was represented by the right attorneys.