Monkey selfie copyright dispute: Difference between revisions

{{Use dmy dates|date=July 2022}}{{Infobox COA case

Between 2011 and 2018, a series of disputes took place about the [[copyright]] status of [[selfie]]s taken by [[Celebes crested macaque]]s using equipment belonging to the British [[wildlife photography|wildlife photographer]] David J. Slater. The disputes involved [[Wikimedia Commons]] and the blog ''[[Techdirt]]'', which have [[Image hosting service|hosted]] the images following their publication in newspapers in July 2011 over Slater's objections that he holds the copyright, and [[People for the Ethical Treatment of Animals]] (PETA), who have argued that the copyright should be assigned to the macaque.

Slater has argued that he has a valid copyright claim because as 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 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]].

Slater stated in August 2014 that, as a result of the pictures being available on Wikipedia, he had lost at least £10,000 ({{GBPInflation|UK|10000|2014|roundfmt=-3eq|aboutcursign=yes£}}) in income and his business as a wildlife photographer was being harmed.<ref name="BBC_7_Aug_2014" /> In December 2014, the [[United States Copyright Office]] stated that [[animal-made art|works created by a non-human]], such as a photograph taken by a monkey, are not copyrightable.<ref>U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021). [https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf]</ref> A number ofSeveral legal experts in the US and UK have argued that Slater's role in the photographic process maywould have been sufficient to establish a valid copyright claim, though this decision would have to be made by a court.<ref name="PolicyReview" /><ref name="El Reg, Cracking" /><ref name="Apollo" />

In a separate dispute, PETA tried to use the monkey selfies to establish a legal precedent that animals should be declared copyright holders. Slater had published a book containing the photographs through the self-publishing company [[Blurb, Inc.]] In September 2015, PETA filed a lawsuit against Slater and Blurb, requesting that the copyright be assigned to the macaque and that PETA be appointed to administer proceeds from the photos for the endangered species' benefit.<ref>{{cite web|url=https://www.mediapeta.com/peta/PDF/Complaint.pdf|title=NARUTO, a Crested Macaque, by and through his Next Friends, PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., and ANTJE ENGELHARDT, Ph.D. Plaintiff, vs. DAVID JOHN SLATER, an individual, BLURB, INC., a Delaware corporation, and WILDLIFE PERSONALITIES, LTD., a United Kingdom private limited company, Defendants.|date=21 September 2015|publisher=People for the Ethical Treatment of Animals|access-date=14 November 2017|archive-date=15 November 2017|archive-url=https://web.archive.org/web/20171115000049/http://www.mediapeta.com/peta/PDF/Complaint.pdf|url-status=dead}}</ref> In dismissing PETA's case, a federal district court ruled that a monkey cannot own copyright under US law.<ref name="AT-20160106">{{citeCite newsweb |lasturl=Kravets |first=Davidhttps://arstechnica.com/tech-policy/2016/01/judge-says-monkey-cannot-own-copyright-to-famous-selfies/ |title=Judge says monkey cannot own copyright to famous selfies |date=2016-01-07 |access-date=2024-01-15 |website=Ars Technica |last=Kravets |first=David |archive-url=https://web.archive.org/web/20160109005741/https://arstechnica.com/tech-policy/2016/01/judge-says-monkey-cannot-own-copyright-to-famous-selfies/ |archive-date=6 January 2016-01-09 |worklanguage=[[Ars Technica]] |access-date=7 January 2016 en}}</ref> PETA appealed. In September 2017, PETA and Slater agreed to a settlement in which Slater would donate a portion of future revenues on the photographs to wildlife organizations. However, the court of appeals declined to dismiss the appeal and declined to vacate the lower court judgment.<ref>{{cite web |last1=Wittenhorst |first1=Tilman |title=Streit über Affen-Selfie geht weiter: Vergleich hinfällig, Urteil angekündigt |url=https://www.heise.de/newsticker/meldung/Streit-um-Affen-Selfie-geht-weiter-Vergleich-hinfaellig-Urteil-angekuendigt-4024493.html |website=Heise online |date=15 April 2018 |language=de}}</ref> In April 2018, the appeals court ruled against PETA in its judgement that animals cannot legally hold copyrights and expressed concern that PETA's motivations had been to promote their own interests rather than to protect the legal rights of the monkeys.<ref name = "888 F.3d 418">''Naruto v. Slater'', 888 F.3d 418 (9th Cir. 2018).</ref>

Since 2008, British nature photographer David Slater had traveled to [[Indonesia]] to take photographs of the critically endangered [[Celebes crested macaque]]s. In 2011 he licensed several images to the Caters News Agency who released them, along with a written promotional press release with quotes from Slater, for publication in the British media.<ref name="newsweek wmf" >{{cite web | url = http://www.newsweek.com/lawyers-dispute-wikimedias-claims-about-monkey-selfie-copyright-265961 | title = Wikimedia says when a monkey take a selfie, no one owns it | first = Louise | last = Stewart | date = 21 August 2014 | access-date = 15 November 2017 | work = [[Newsweek]]}}</ref><ref>{{cite journal|url=https://policyreview.info/articles/analysis/monkey-selfie-copyright-lessons-originality-photographs-and-internet-jurisdiction|title=The monkey selfie: copyright lessons for originality in photographs and internet jurisdiction|first=Andrés|last=Guadamuz|date=21 March 2016|journal=Internet Policy Review|volume=5|doi=10.14763/2016.1.398|doi-access=free|hdl=10419/214004|hdl-access=free}}</ref> On 4 July 2011 several publications, including ''[[The Daily Telegraph|The Telegraph]]'' and ''[[The Guardian]]'', picked up the story and published the pictures along with articles that quoted Slater as describing the photographs as self-portraits taken by the monkeys, such as "Monkey steals camera to snap himself" (''The Telegraph''),<ref name=Telegraph_04_Jul_11>{{cite news|url=https://www.telegraph.co.uk/news/newstopics/howaboutthat/8615859/Monkey-steals-camera-to-snap-himself.html|title=Monkey steals camera to snap himself|work=The Telegraph|date=4 July 2011|access-date=4 November 2017}}</ref> and "a camera on a tripod" triggered by the monkeys (''The Guardian'').<ref>{{cite web |url=https://www.theguardian.com/world/2011/jul/04/shutter-happy-monkey-photographer |title= Shutter-happy monkey turns photographer |last=Morris |first=Steven |date=4 July 2011 |work=The Guardian |archive-url=https://web.archive.org/web/20221015170943/https://www.theguardian.com/world/2011/jul/04/shutter-happy-monkey-photographer |archive-date=15 October 2022 |url-status=live |access-date=15 October 2022}}</ref> The articles also contained Slater quotes such as "He must have taken hundreds of pictures by the time I got my camera back." The following day, ''[[Amateur Photographer]]'' reported that Slater gave them further explanation as to how the photographs were created, downplaying the way newspaper articles had described them; Slater said reports that a monkey ran off with his camera and "began taking self-portraits" were incorrect and that the portrait was shot when his camera had been mounted on a tripod, with the primates playing around with a remote cable release as he fended off other monkeys.<ref name=Amateur_Photographer_5_July_2011>{{cite news|first=Chris |last=Cheesman|url=http://www.amateurphotographer.co.uk/latest/photo-news/ape-rture-priority-photographer-plays-down-monkey-reports-16224|title=Ape-rture priority photographer plays down monkey reports|work=[[Amateur Photographer]]|date=5 July 2011|access-date=4 November 2017}}</ref>

On 9 July 2011, an editor on [[Wikimedia Commons]], a site that only accepts media available under a [[free content license]] or in the [[public domain]], uploaded the selfie photographs from ''The Daily Mail''.<ref name="newsweek wmf"/> The uploader assertedclaimed that the photographs were in the public domain as "the work of a non-human animal", adding that "it has no human author in whom copyright is vested".<ref name=Wikipedia_9_Jul_2011>{{cite web|url=https://commons.wikimedia.org/wiki/File:Macaca_nigra_self-portrait.jpg#filehistory|title=Macaca nigra self-portrait|work=Wikimedia Commons|date=9 July 2017|access-date=4 November 2017}}</ref> Slater discovered this a few days later and requested that the [[Wikimedia Foundation]] remove the photos. Initially, an administrator at Commons removed the images, but they were later restored after a community discussion on their copyright nature. Slater continued to challenge the foundation to remove the image.<ref name="newsweek wmf"/> The foundation reviewed the situation, but made the determination that the images were in the public domain and denied Slater's request; in its transparency report for August 2014, the foundation stated "copyright cannot vest in non-human authors" and "when a work's copyright cannot vest in a human, it falls into the public domain".<ref name="BBC_7_Aug_2014"/><ref name="newsweek wmf"/><ref name="ITV"/><ref name="bbc-reject">{{cite news| url = https://www.bbc.co.uk/news/technology-28672121| title = Wikipedia reveals Google 'forgotten' search links| date = 6 August 2014| access-date = 8 August 2014| publisher = BBC News}}</ref>

The British [[entertainment law|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.<ref name="ITV">{{cite news|url=http://www.itv.com/news/2014-08-06/wikipedia-refuses-to-delete-photo-as-monkey-owns-it/|title=Monkey 'selfie' picture sparks Wikipedia copyright row|date=6 August 2014|access-date=14 August 2014|url-status=live|archive-date=13 August 2014|archive-url=https://web.archive.org/web/20140813141113/http://www.itv.com/news/2014-08-06/wikipedia-refuses-to-delete-photo-as-monkey-owns-it/|publisher=[[ITV plc]]|work=[[ITV News]]}}</ref> 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."<ref name="El Reg, Cracking" /> 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.<ref name=PolicyReview>{{cite journal|last1=Guadamuz|first1=Andres|title=The monkey selfie: copyright lessons for originality in photographs and internet jurisdiction|journal=Internet Policy Review|date=2016|volume=5|issue=1|doi=10.14763/2016.1.398|url=http://policyreview.info/articles/analysis/monkey-selfie-copyright-lessons-originality-photographs-and-internet-jurisdiction|doi-access=free|hdl=10419/214004|hdl-access=free}}</ref> Iain Connor, a partner in [[Pinsent Masons]], similarly said that the photographer could claim they had "put the camera in the hands of the monkey so [they had] taken some creative steps and therefore own the copyright," and that "if it's an animal that presses the button, it should be the owner of the camera that owns the copyright to that photo."<ref name=Guardian2014-08-22 />

During a hearing in January 2016, US District Judge [[William Orrick III]] said that the [[Copyright law of the United States#Copyright limitations, exceptions, and defenses|copyright law]] does not extend its protection to animals.<ref name="AT-20160106" /><ref name=USN20160106>[https://www.usnews.com/news/offbeat/articles/2016-01-06/judge-rules-monkey-cannot-own-selfie-photos-copyright A macaque monkey who took now-famous selfie photographs cannot be declared the copyright owner of the photos], ''[[Associated Press]]'', 7 January 2016.</ref> 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."<ref>{{cite news |last1=Iovino |first1=Nicholas |title=Judge Dismisses PETA's 'Monkey Selfie' Lawsuit |url=http://www.courthousenews.com/2016/01/29/judge-dismisses-petas-monkey-selfie-lawsuit.htm |access-date=30 January 2016 |agency=Courthouse Naws Service |date=29 January 2016 |url-status=dead |archive-url=https://web.archive.org/web/20160131082259/http://www.courthousenews.com/2016/01/29/judge-dismisses-petas-monkey-selfie-lawsuit.htm |archive-date=31 January 2016 }}</ref><ref>''Naruto, et al. v. Slater, et al.,'' no. 15-CV-04324 (N.D. Cal. 28 January 2016)([http://www.courthousenews.com/2016/01/29/monkey%20selfie.pdf Order Granting Motions To Dismiss]). Retrieved 30 January 2016.</ref> On 20 March 2016, PETA filed a notice of appeal to the [[Ninth Circuit Court of Appeals]].<ref>{{cite news |last1=Papenfuss |first1=Mary |title=Captivating monkey Naruto who snapped viral selfies filing appeal for right to photos |url=http://www.ibtimes.co.uk/captivating-monkey-naruto-who-snapped-viral-selfies-filing-appeal-right-photos-1550654 |access-date=21 March 2016 |work=International Business Times |date=21 March 2016}}</ref> On 12 July 2017, the court held an oral argument on the matter in San Francisco.<ref>{{cite web |title=Oral Argument Notice – James R. Browning U.S. Courthouse, San Francisco – 2017-07-12 |url=http://www.ca9.uscourts.gov/calendar/view.php?caseno=16-15469 |website=www.ca9.uscourts.gov |access-date=22 May 2017}}</ref> 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.<ref>{{cite web|url=https://arstechnica.com/tech-policy/2017/08/monkey-selfie-animal-rights-brouhaha-devolves-into-a-settlement/|title=Monkey selfie animal rights brouhaha devolves into a settlement|date=5 August 2017}}</ref> The court on 11 August stayed the appeal to 8 September.<ref>''Naruto v. Slater,'' no. 16-15469, 9th Cir., Order (11 August 2017), retrieved from [https://ecf.ca9.uscourts.gov PACER], 4 September 2017</ref> An agreement between Slater, Blurb, and PETA was reached on 11 September 2017, in which Slater will donate 25 per cent of any future revenues from the monkey selfies to charities that protect the wildlife of monkeys like Naruto, but the court has not accepted this agreement as being a valid settlement.<ref>{{cite web | url = https://www.engadget.com/2017/09/11/monkey-selfie-rights-battle-ends-with-settlement/ | title = Monkey selfie copyright battle ends with a settlement | first = Jon | last = Fingas | date = 11 September 2017 | access-date = 11 September 2017 | work = [[Engadget]] }}</ref> As part of their joint motion to dismiss the appeal and vacate the judgment, the parties have asked for ''[[Vacated judgment|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''.<ref>{{cite web|first1=Sophie|last1=Duffy|first2=Dori Ann|last2=Hanswirth|title=Monkey See, Monkey Do… Monkey Own? The Curious Case of Naruto v. Slater|url=https://www.lexology.com/library/detail.aspx?g=5deafb41-a767-4319-bf93-cff2bc5d726a|website=lexology.com|access-date=22 September 2017|date=20 September 2017}}</ref>

By July 2017, Slater was reported to be having financial problems and was unable to pay his attorney.<ref name=Guardian2017-07-12>{{cite news|url=https://www.theguardian.com/environment/2017/jul/12/monkey-selfie-macaque-copyright-court-david-slater|title=Monkey selfie photographer says he's broke: 'I'm thinking of dog walking'|author=Julia Carrie Wong|author-link=Julia Carrie Wong |work=The Guardian|date=13 July 2017|access-date=16 July 2017}}</ref><ref name=Telegraph2017-07-13 /><ref>{{cite news|url=http://www.iflscience.com/plants-and-animals/photographer-being-sued-by-a-monkey-over-its-selfie-is-now-broke/|title=Photographer Being Sued By A Monkey Over Its "Selfie" Is Now Broke|work=IFLScience|date=13 July 2017|access-date=16 July 2017}}</ref> 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.<ref name="BBC_7_Aug_2014" /><ref name=Telegraph2017-07-13 />

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.<ref name=Telegraph2017-07-13>{{cite news|first= Camilla |last= Turner |url=https://www.telegraph.co.uk/news/2017/07/13/photographer-centre-bizarre-court-battle-reveals-sued-monkey/|title=Photographer in bizarre selfie court battle reveals that being sued by a monkey has left him broke|work=The Telegraph|date=13 July 2017|access-date=16 July 2017}}</ref> He said he was no longer motivated to take photographs, that he had become depressed,<ref name=Telegraph2017-07-13 /> and that his efforts to "highlight the plight of the monkeys" had "backfired on my private life" and ruined his life.<ref name=Telegraph2017-07-13 /> However, Slater said he was delighted by the impact of the photoshoot 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."<ref name="Telegraph2017-07-13" />