Debate Forum 1/19

Monkey see, monkey sue

The case for macaque copyright

By Sarah Sidlow

It’s a jungle out there in copyright land and all the monkeys are getting in on it. If you’ve recently seen a winsome little monkey on your newsfeed, chances are it’s not your ex.

This magnetic macaque is at the center of a legal copyright storm—all because of a selfie it took in 2011.

Let’s revisit. Photographer David Slater, a human from Coleford Gloucestershire (that’s in England) was taking photos on the Indonesian island of Sulawesi in 2011. Slater deliberately left his camera equipment unattended in the hopes of engaging the activity of some nearby macaques. Well, it worked. Though it took a bit of time and over a hundred blurry attempts, the macaques, trigging the shutter themselves, managed to take some pretty spectacular photos of their crew. One of them in particular went viral almost immediately. Because it’s awesome.

What’s not so awesome, at least for Slater, is that now everyone wants a piece of the action, and there are claims that the proper copyright could belong to Slater, the monkey, or no one at all.
Slater claims the image’s copyright should be his, because it was taken on his equipment and, more or less, at his discretion. He set up the entire shoot, he claims, and was responsible for everything involved in the making of the photo. In fact, he got a British copyright for all of the images in 2011.

Wikimedia Commons (an online repository of free-use media) says, “nope” and has included the selfie in its collection of over 22 million images and video files that are free to use by anyone online. Their argument: In 2014, the U.S. Copyright Office declared works “produced by nature, animals or plants” would not be permitted to get copyright protection. Since this particular dispute began, the Copyright Office has further clarified its position, listing specifically “a photograph taken by a monkey” as an example of an item that cannot be copyrighted.

Slater is not happy with that argument, or the U.S.-based Wikimedia company, and plans to sue for statutory damages of up to $30,000.

But before that happens, the courts need to make sure the photo doesn’t actually belong to a monkey. Thanks PETA. Not to be left on the sidelines, PETA (People for the Ethical Treatment of Animals) has thrown its hat in the ring for the benefit of Mr. Monkey—a six-year-old macaque named Naruto who is purportedly the subject of the selfie in question. They claim that since Naruto is actually the one who triggered the camera’s shutter, it’s his artwork.

But U.S. District Judge William Orrick (also a human) recently decided Naruto is out of the bidding, and that a monkey can’t be declared the owner of an image’s copyright. At least, until Congress says otherwise.

You know what else is bananas? Slater does not believe Naruto is even the monkey in the photo, calling him “a fraudulent 6-year-old male monkey falsely impersonating the one in my photos.”

Which begs another question entirely: if monkeys can be considered as copyright owners, can they sue for defamation of character?

Reach Dayton City Paper freelance writer Sarah Sidlow at

Monkeying around

By Tim Walker

“A monkey, an animal-rights organization, and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright.”

What sounds like the setup for a bad joke is actually the lead sentence in a motion to dismiss filed by Andrew J. Duhey, an attorney in Berkeley, California in January of this year. The party represented by Mr. Duhey in those court proceedings was David John Slater, a British photographer, and the filed motion—which was granted later that same day by the Honorable William H. Orrick, U.S. District Court—was a request to dismiss a legal action undertaken by People for the Ethical Treatment of Animals (PETA) on behalf of a monkey and his photograph.

The monkey is Naturo, an Indonesian crested black macaque, and the reason he was in court—figuratively, of course—was because of a “selfie” he’d taken in 2011 with David John Slater’s camera. A selfie which went viral and the rights to which, according to Slater, then became worth a great deal of money. Slater went to court to try and protect what he claimed was his justifiable copyright on the image—a copyright which had already been granted in his native England—and PETA then sued to have Naturo, who they alleged was the true “author” of the work, declared the rightful owner of the copyright on the image. A copyright which they would then administer on behalf of the macaque, presumably with his permission.

While granting the plaintiff’s motion to dismiss, the judge commented, “I’m not the person to weigh into this. This is an issue for Congress and the president,” U.S. District Judge William Orrick said from the bench. There’s “no indication” that the Copyright Act extends to animals, Orrick wrote in his tentative opinion.

Granted, the judge’s ruling is his interpretation of the law as written; that’s what judges do. My question, however, is … why the hell not?

In the United States, for a work to qualify for copyright protection it must meet three criteria. It must be fixed in a tangible medium, it must be an original work, and it must have an “author”—and in the United States, the term “authorship” implies that the work must owe its origin to a human being. Therefore, materials produced solely by nature, by plants or by animals are not copyrightable. Naturo’s photo definitely meets the first two criteria, which leaves only the prejudicial language of the third to overcome.

Animals cannot legally be considered the “author” of a work. Yet as we have seen time and time again, that our laws are not fixed on stone tablets. The law is an evolving set of guidelines for our society, forever changing and being reinterpreted—much like our societal attitudes toward animals and their emerging legal rights.

“All animals are equal, but some animals are more equal than others,” wrote George Orwell in his book “Animal Farm.” Human beings, according to the six-kingdom system, are classified as Animalia, exactly the same as cats, dogs, macaques, PETA and the Honorable William Orrick. And while, in less enlightened times, animals were considered simple pieces of property, with no rights or protection under the law, those laws are changing, along with our attitudes toward the intelligence of our furrier cousins.

Koko the gorilla, according to her trainers, can understand and communicate using over 1,000 words in a modified form of sign language. Various scientists and researchers have claimed that animals possess their own unique form of intelligence, that dolphins, elephants, horses and chimpanzees have shown in tests that they possess a form of rudimentary reasoning ability. Chimpanzees and elephants have created paintings which hang in galleries, and while we have yet to find an animal Rembrandt, these works—if interpreted properly—might give us some insight into the feelings and creative intellect behind a Jumbo, or a Koko, or a macaque. Is it really that much of a stretch to imagine a near future world in which animals like Naturo will create works of art which are then sold to the public, and in turn protected under the law?

An old homily states that a million monkeys hammering away for a million years on a million typewriters would one day duplicate the complete works of Shakespeare. One wonders, however, if a million lawyers typing a million briefs on a million laptops might one day reach this foregone conclusion—that animals are intelligent, that in certain circumstances they can even be creative, and that they deserve all of the protection our legal system can offer.

After all … let’s be perfectly honest. If the federal government can extend copyright protection to the “intellects” behind a movie like “The Hangover, Part 3,” can legal protection for the artistic expression of jungle-dwelling apes really be all that far behind?

Tim Walker is 50 and a writer, DJ, and local musician. He lives with his wife and their 2 children in Dayton, where he enjoys pizza, jazz and black t-shirts.

Tales from the monkey files

By Brad Sarchet

I’ve written several articles for DCP’s Debate Forum, but I think this is the strangest and most interesting topic I’ve addressed. For this issue I am defending the photographer David Slater’s claim that he owns the copyright of a particular “monkey selfie” photo and is, therefore, entitled to all proceeds and royalties generated by its use/sale. A rather clear case of copyright ownership, or so I thought. Turns out to be not such a clear issue at all, and I find myself siding with Slater in some cases but against him in others.
The main issue to ferret out of this mess is the copyright issue and determining whom, if anyone can claim ownership of the copyright of the wonderful selfie of Naruto. In this case the answer is not merely a legal curiosity since Slater claims to have earned £2,000 from his initial sales of the photos, but has lost an estimated £10,000 since people don’t seem interested in paying him for pictures that are free on Wikimedia. Slater is understandably upset.
The first question is whether or not the photo can actually be copyrighted, i.e., is it “copyrightable?” If it turns out that the photo is not copyrightable—and so there is NO possible copyright to be owned—then one might think that the entire issue would be resolved. Well, it isn’t and it isn’t. According to criteria used by the U.S. Copyright Office, Naruto’s selfie falls into the category of “works that lack human authorship” and so it cannot be copyrighted, but that hasn’t stopped law suits favoring Slater or Naruto herself as owners of the copyright.
At this point if we consider the official word from the U.S. Copyright Office in broad strokes, then neither Mr. Slater nor Ms. Naruto have a chance to claim copyright ownership. According to the Compendium of the U.S. Copyright Office Practices, 3rd ed., Chapter 300, Section 313.2, “the Office will not register works produced by nature, animals, or plants,” and the examples listed include: A photograph taken by a monkey, a mural painted by an elephant, a claim based on the appearance of actual animal skin, a claim based on driftwood that has been shaped and smoothed by the ocean and a claim based on cut marks, defects, and other qualities found in natural stone.
The first example, which was added to the list after this case erupted, quite clearly stacks the deck against Slater, but I think the difference between this example and the others listed actually provides an opening to argue in favor of Slater’s copyright ownership.
Before turning to Slater’s argument, however, a quick review of the case for Naruto’s copyright ownership can quickly eliminate at least one primate from the copyright issue. Representatives from PETA have unsuccessfully made the case that the selfie’s copyright belongs to Naruto since he is the subject of the photo and is the actual “being who took the photograph,” to quote a PETA attorney from an article in The Guardian. Unfortunately for Naruto, however, a federal judge recently ruled that “the monkey cannot own the copyright because—he’s a monkey,” which means s/he is not a legal person in terms of copyright ownership and so this primate is out of luck. PETA representatives also contradict themselves when arguing that Slater cannot own the copyright because the picture is not copyrightable (because it was not taken by a human), but then claim that the copyright belongs to Naruto because she took the picture. If the picture is not copyrightable for a human, then clearly it’s not copyrightable for a monkey, regardless of how charismatic she may be!
Finally, I think a strong argument can be made in favor of Slater’s bid for copyright ownership by comparing 1) the overall artistic process required to create the “monkey selfies” and the role played by Slater in their creation and, 2) the artistic processes required to create all the other examples of “works that lack human authorship” and the roles played by any humans in their production. I think the difference in the roles played by human artists in these cases is sufficient enough to allow differing claims of copyright ownership. For example, humans play no role whatsoever in the production of a beautifully worn piece of driftwood or natural stone. And humans may supply elephants with the paint and other materials they need to create a mural, but humans play no other role in the actual creation of the piece. In the case of the monkey selfies, Slater did everything but press a button.
Thus, it seems that in the case of Slater and the monkey selfies, the only action that determines who owns the picture’s copyright is the ridiculously simple act of pressing the shutter button to take the picture. If Slater sets up everything and presses the shutter button himself, then he owns the copyright and earns some nice royalties. But if everything else remains the same, and the monkey presses the shutter button, then Slater gets nothing. This sounds like an accurate description of the case, which seems incredibly unfair to Slater. And what would be the case if Slater had left the camera sit with a timer so that the camera automatically took pictures every few minutes? Who would own the copyright in that case? Slater still did all the preparatory work but neither he nor the monkey technically pushed the shutter button to take the picture. Now who owns the copyright?
In the end I believe the U.S Copyright Office needs to do a bit more work to differentiate processes involved in creating pieces that they determine to be not copyrightable due to the “lack of human authorship” and not simply cop out by adding every new and challenging case to their list of work deemed lacking in human authorship.

Brad Sarchet, Ph.D., has advanced degrees in philosophy and physiology and is currently a biology professor at a local university. He is interested in the philosophy of science and animal physiology. He’s also an old hippy and Dead Head. Reach him at

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Reach DCP editor Sarah Sidlow at

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