Selfies, species, and public domain

By Marie-Andrée Weiss

Naruto, a male crested macaque living in a reserve in Indonesia, is actively engaged in self-exploration. In 2011, he took several photographs of himself using a camera which British nature photographer David Slater had set on a tripod to capture the images of crested macaques in the wild. Naruto became an international sensation, when, whether by chance, Naruto’s sheer genius, or Slater’s settings of the camera, one of these photographs turned out to be very good.

The photograph taken by Naruto was in fact so good that Slater was able to license it. But not everybody agreed that Slater owned the copyright: website Techdirt took the view that the picture was in the public domain, and so did Wikipedia, which put it in its Commons. Slater claimed that he owned the copyright to the selfie and asked Wikipedia to take it down. Wikipedia refused.

There is no doubt that photographs are protected by U.S. copyright. In 1884, the Supreme Court held in Burrow-Giles Lithographic. Co. v. Sarony that “the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.” The Copyright Act, however, does not define “author.” Who is the author of the “monkey selfie”?

Arguing for Slater: is the great ape the author of the selfie?

Slater declared in a 2011 interview that the picture was serendipitous, describing how one of the macaques “must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy… and it looked like [the monkeys] were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it.”

If this is how the photograph was taken, Slater would not be considered, under U.S. Copyright law, as the copyright owner. Indeed, Section 306 of the Compendium of U.S. Copyright Practices declares that “[t]he copyright law only protects the fruits of intellectual labor that “are founded in the creative powers of the mind, Trade-Mark Cases, 100 U.S. 82, 94 (1879).“

However, Slater said in a later interview that he had placed the camera on a tripod, framed the shot, and calculated the exposure so that “all you’ve got to do is give the monkey the button to press and lo and behold you got the picture.” If he can prove this to be the case, he may be able to convince a court he owns the copyright.

Arguing for Naruto: is the macaque the author of the selfie?

Section 313-2 of the Compendium of U.S. Copyright Practices explains that the Copyright Office “will not register works produced by nature, animals, or plants” and gives as such examples a “photograph taken by a monkey.” This quote, added in the Third Edition of the Compendium, published in 2014, was directly inspired by the “monkey selfie.”

However, in September 2015, the People for the Ethical Treatment of Animals (PETA) and Dr. Antje Engelhardt, a primatologist and ethologist, acting as Naruto’s next friends, filed a complaint in the Northern District of California for copyright infringement against Slater, Blurb Inc. and Wildlife Personalities. Ltd.

Blurb had published and sold in the U.S. a book by Slater reproducing the famous selfie, as well as other pictures taken by Naruto. The book identifies Slater and Wildlife Personalities as the copyright owners.

The complaint asked the court to rule that all proceeds from the sale, licensing, and other commercial uses of the selfies, including Defendants’ disgorged profits, must be used for the sole benefit of Naruto, his family and his community. It is hard to deny that this money would have been used for a very good cause, since Naruto’s species is endangered.

Naruto took the position that he is the author of the selfie and that he had used “a camera left unattended by defendant David John Slater” to take the famous selfie. He argued that he had:

“the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner. 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.”

Naruto quoted Defendant Slater, who had written in the book in contention that crested macaques are “intelligent – artistic – complex.” The complaint also explained that crested macaques, as all primates, “have stereoscopic color vision with depth perception and are vision dominant.”

Only Homo Sapiens can be authors under U.S. copyright law.

On January 28, 2016, District Judge Orrick granted defendants’ motion to dismiss, because animals have no standing under the Copyright Act. Judge Orrick quoted the Ninth Circuit Cetacean Community v. Bush case, a case filed by a “self-appointed attorney for all of the world’s whales, porpoises, and dolphins,” on behalf of the Cetaceans, for violations of the Endangered Species Act, the Marine Mammal Protection Act, and the National Environmental Policy Act. The Ninth Circuit held in this case 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.”

Judge Orrick reasoned the Copyright Act does not “plainly“ extend the concept of authorship to animals, and quoted several cases where the courts referred to human beings as the authors of works protected by copyright. For instance, in Cmty. for Creative Non-Violence v. Reid, the Supreme Court explained that “[f]or copyright purposes… a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work]” (emphasis added by Judge Orrick).

Judge Orrick also noted that Section 306 of the Compendium of U.S. Copyright Practices and Section 313-2 of the Compendium of U.S. Copyright Practices  both state that the Copyright Office does not accept to register works produced by an animal. He concluded that Naruto is not an “author” within the meaning of the Copyright Act.

Would the outcome of this case be different in the European Union?

Judge Orrick did not, however, specifically award authorship of the selfie to Slater, and so the selfie is probably in the public domain in the U.S. Nevertheless, Slater has declared in an interview that he will now sue Wikipedia for copyright infringement, not in the U.S., but in the European Union. Indeed, he may have a better chance to prove he is the owner of the copyright there, as the European Court of Justice held in Eva Maria Painer. v. Standard Verlags that “a portrait photograph can… be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph.”

If Slater can prove that he deliberately set the camera on a tripod, at a certain angle and a certain time of the day, such “free and creative choices” may supersede the mere fact that it was the monkey which clicked the camera. So the monkey selfie may not be in the public domain in the European Union.

In any event, the question of whether animals may be authors seems to be in the zeitgeist.  The owners of a British horse that photobombed a selfie to yield an award-winning photograph have complained to the contest sponsor., The prospective of representing animals is certainly intriguing for copyright attorneys…