Monkey selfie copyright dispute
The monkey selfie copyright dispute is a series of disputes about the copyright status of selfies taken by Celebes crested macaques using equipment belonging to the British nature photographer David Slater. The disputes involve Wikimedia Commons, which has hosted the images over Slater's objections, and People for the Ethical Treatment of Animals (PETA), who have argued that the macaque should be assigned the copyright.
Slater has argued that he has a valid copyright claim based on the fact that he engineered the situation that resulted in the pictures, by travelling to Indonesia, befriending a group of wild macaques, and setting up his camera equipment in such a way that a "selfie" picture might come about. The Wikimedia Foundation's 2014 refusal to remove the pictures from its Wikimedia Commons image library was based on the understanding that copyright is held by the creator, that a non-human creator (not being a legal person) cannot hold copyright, and that the images are thus in the public domain. In December 2014, the United States Copyright Office stated that works created by a non-human, such as a photograph taken by a monkey, are not copyrightable. A number of legal experts in the US and UK have nevertheless argued that Slater's role in the process that led to the pictures being taken may have been sufficient to establish a valid copyright claim, stating that this is a decision that would have to be made by a court.
In a separate dispute PETA has tried to use the monkey selfies to establish a legal precedent that animals can be declared copyright holders. Slater had published a book containing the photographs through self-publishing company Blurb, Inc. In September 2015, PETA filed a lawsuit against Slater and Blurb, requesting that the monkey be assigned copyright and that PETA be appointed to administer proceeds from the photos for the endangered species' benefit. In 2016, a judge ruled that the monkey cannot own the copyright to the images. PETA appealed, and in September 2017, all sides agreed to a settlement in which Slater will donate a portion of future revenues on the photographs to wildlife organizations.
Slater stated in July 2017 that as a result of the pictures having been made freely available for commercial re-use on Wikimedia Commons and the ongoing PETA lawsuit, he was financially ruined and was considering giving up his career as a wildlife photographer.
In 2008, British nature photographer David Slater travelled to Indonesia to take photographs of the critically endangered Celebes crested macaques. The photos were brought to wider public attention after they were publicised as monkey self-portraits by a news agency in 2011.
To take the pictures, Slater followed a troop of macaques for three days and gained the gregarious animals' trust: "I became accepted as part of the troop, they touched me and groomed me." Slater reported that despite this close contact, he had trouble obtaining close-up shots of the monkeys' faces, as they were too nervous when approached with a camera. On the second day of his three-day shoot, Slater set up the camera on a tripod, and deliberately left the remote trigger for the camera accessible to the macaques. "I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens."
A female macaque pressed the remote trigger and took several photographs. Most of these photographs were unusable, but some were clear photographs of the macaque, which Slater later distributed as a "monkey's selfie". Slater licensed the image to the Caters News Agency, under the presumption that he held copyright to the photo; Slater argued that he had "engineered" the shot, and that "it was my artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken." "It required a lot of knowledge on my behalf, a lot of perseverance, sweat and anguish, and all that stuff."
Slater's copyright claim was questioned by the blog Techdirt, which argued that the photograph was in the public domain because the monkey was not a legal person capable of holding a copyright, and Slater could not hold copyright to the photo because he was not involved in its creation.
Afterwards, Caters News Agency issued a request for the photo to be removed, citing a lack of permission; however, in response to a reply by the blog's author, Mike Masnick, the representative stated that Masnick had "blatantly 'lifted' these photographs from somewhere—I presume the Daily Mail online", and continued to request its removal (despite Masnick's claim that, if it were even capable of being copyrighted, the photo's use on Techdirt would be considered fair use under United States copyright law), believing that "regardless of the issue of who does and doesn't own the copyright—it is 100% clear that the copyright owner is not yourself."
The photographs were also uploaded to the multimedia repository Wikimedia Commons, a site that only accepts media available under a free content license, in the public domain, or otherwise ineligible for copyright. The website had similarly listed the photographs as being in the public domain on the grounds that they were the creation of an animal, and not a person. Slater requested that the Wikimedia Foundation, the owners of Wikimedia Commons, either pay for the photographs or remove them from Wikimedia Commons, claiming that he owned copyright on them. His claim was rejected by the organization, which determined that no one owned copyright as the monkey was the creator of the photographs. The request was revealed as part of a transparency report released by the foundation in August 2014.
Slater told BBC News that he had suffered financial loss as a result of the pictures being available on Wikimedia Commons, "I made £2,000 [for that picture] in the first year after it was taken. After it went on Wikipedia all interest in buying it went. It's hard to put a figure on it but I reckon I've lost £10,000 or more in income. It's killing my business." Slater was quoted by The Daily Telegraph as saying, "What they don't realise is that it needs a court to decide [the copyright]." In January 2016, Slater stated his intention to sue Wikipedia for copyright infringement of his works.
American and British intellectual property lawyers Mary M. Luria and Charles Swan said that because the creator of the photograph is an animal and not a person, there is no copyright on the photograph, regardless of who owns the equipment with which the photograph was created.
However, British media lawyer Christina Michalos said that on the basis of British law on computer-generated art, it is arguable that Slater may own copyrights on the photograph, because he owned and presumably had set up the camera. Similarly, Serena Tierney, of London lawyers BDB, stated "If he checked the angle of the shot, set up the equipment to produce a picture with specific light and shade effects, set the exposure or used filters or other special settings, light and that everything required is in the shot, and all the monkey contributed was to press the button, then he would seem to have a passable claim that copyright subsists in the photo in the UK and that he is the author and so first owner." Furthermore, Andres Guadamuz, a lecturer in IP law at Sussex University, has written that existing European case law, particularly Infopaq International A/S v Danske Dagblades Forening, makes it clear that the selection of photographs would be enough to warrant originality if the process reflects the personality of the photographer.
On 22 December 2014, the United States Copyright Office clarified its practices, explicitly stating that works created by non-humans are not copyrightable, and listing a "photograph taken by a monkey" and "a mural painted by an elephant" in its compendium as examples of the types of work it would not register. According to University of Michigan law professor, Jessica Litman, "No human author has rights to a photograph taken by a monkey," . . . "The original monkey selfie is in the public domain".
Art lawyer Nicholas O'Donnell of Sullivan & Worcester LLP commented that "even if 'a photograph taken by a monkey' cannot be copyrighted by the monkey, it is not clear why that would categorically rule out any copyright for a human author in a work in which cameras are intentionally left in a place where some natural force or animal will cause them to snap a photo". A spokeswoman for the UK Intellectual Property Office similarly said, "The IPO indicates that under UK law animals cannot own copyright. However the question as to whether the photographer owns copyright is more complex. It depends on whether the photographer has made a creative contribution to the work and this is a decision which must be made by the courts."
The 'Monkey-selfie selfie' became a theme at Wikimania 2014 at the Barbican Centre in London. Conference attendees, including Wikipedia co-founder and Wikimedia Foundation board member Jimmy Wales, posed for selfies with printed copies of the macaque photograph. Reaction to these selfies and to pre-printed monkey posters was mixed. According to Wikipedia contributor Andreas Kolbe, writing in Wikipediocracy, Wales' action was criticized by some users on Twitter and Wikipedia "for what appeared like tactless gloating".
Naruto et al v. David Slater
The macaque photographs appeared in a book titled "Wildlife Personalities" that Slater had published via San Francisco-based self-publishing company Blurb, Inc. On 22 September 2015, People for the Ethical Treatment of Animals (PETA) filed a lawsuit against Slater and Blurb in the United States District Court for the Northern District of California to request that the monkey, whom they named Naruto, be assigned copyright and that PETA be appointed to administer proceeds from the photos for the benefit of Naruto and other crested macaques in the reserve on Sulawesi. PETA did so by using the next friend principle, which allows persons to sue in the name of another person who is unable to do so. In November, Angela Dunning, the attorney for Blurb, noted that PETA may have been suing on behalf of the wrong monkey.
During a hearing in January 2016, US District Judge William Orrick III said that the copyright law does not extend its protection to animals. Orrick dismissed the case on 28 January, ruling that "if Congress and the president intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly." On 20 March 2016, PETA filed a notice of appeal to the Ninth Circuit Court of Appeals. On 12 July 2017 the court held an oral argument on the matter in San Francisco. On 4 August 2017, lawyers for all parties to the case informed the court that they expected to arrive at an out-of-court settlement in the near future, asking the court not to issue a ruling. The court on 11 August stayed the appeal to 8 September. A settlement between Slater, Blurb, and PETA was reached on 11 September 2017, in which Slater will donate 25% of any future revenues from the monkey selfies to charities that protect the wildlife of monkeys like Naruto. As part of their joint motion to dismiss the appeal and vacate the judgment, the parties have asked for vacatur, which would nullify the record in the lower court. The Competitive Enterprise Institute filed an amicus brief on 13 September 2017, urging the court to deny vacatur. The brief argues, that since Naruto is not a party to the settlement, PETA does not have standing to move for vacatur. The Ninth Circuit has not yet ruled on whether it will grant the motion, although the settlement itself can still stand even if vacatur is denied.
Impact on Slater
By July 2017, Slater was reported to be broke and unable to pay his attorney. While he had originally made a few thousand pounds from the images, enough to recoup his travel costs to Indonesia, this income reduced to about "£100 every few months" when the Wikimedia Foundation refused to stop making the images available without his permission.
Slater was unable to travel to the July 2017 court hearing in the United States for lack of funds and said he was considering alternative careers as a dog walker or tennis coach. "This would be a new venture for me. It would pay peanuts, but at least it would be more than photography. I am just not motivated to go out and take photos any more. I've had outlays of several thousand pounds for lawyers, it is losing me income and getting me so depressed. When I think about the whole situation I really don't think it's worth it." Slater added, "Everything I did to try and highlight the plight of the monkeys has backfired on my private life. I've had my life ruined."
However, Slater still said he felt "absolutely delighted" with the impact of the photo shoot itself: "It has taken six years for my original intention to come true which was to highlight the plight of the monkeys and bring it to the world. No one had heard of these monkeys six years ago, they were down to the last thousands. ... The locals used to roast them, but now they love them, they call it the 'selfie monkey'. Tourists are now visiting and people see there is a longer-term benefit to the community than just shooting a monkey."
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