Public domain or animal rights?
So, the long-running legal saga starring a photographer, a monkey and an animal rights organisation has finally come to an end when both parties (not the monkey) have reached a settlement. While it is not common to learn the particulars of such an agreement, lawyers for PETA have said that the deal includes a commitment from photographer David Slater to pay 25% of all future royalty revenue to the monkey sanctuary. For some background on the events that took place before, you can read my published peer-reviewed article here, and my three earlier blog posts (one, two, and three).
This is not the resolution that us legal geeks wanted. By definition, a settlement is when the parties come to a mutual agreement, but a court does not get to decide on the point of law. So while we have a lower court decision declaring that PETA did not have legitimacy to bring the case because monkeys cannot sue for copyright infringement, we still do not have any declaration on whether an animal can have copyright. This may seem counter-intuitive given the fact that the case was appealed, but from the very start the case has seemed to have been fought mostly on technicalities and procedural issues (such as whether PETA had identified the right monkey). While I do not think that animals are capable of owning copyright, I would have liked a court to take a look at more interesting questions.
There are only 3 legal options with regards to the picture: the monkey has rights (which no court has ever declared); David Slater owns the copyright, or the picture is in the public domain, in which case everyone can use it and re-use it. With the legal situation as it stands after the settlement, it’s possible that many people won’t pay any royalties to Slater as they continue to argue that the picture is in the public domain, so the entire idea of 25% being paid to the monkey refuge seems a bit strange.
My position remains that I think that Slater owns the copyright over the picture as he did enough of a job at setting up the camera to allow the monkey to take a picture, as well as choosing the right aperture and angle, as well as selecting a number of pictures for publication, and discarding others. This is consistent with the fact that copyright is not awarded to the person who pushes the button, otherwise there would be no copyright on pictures taken with a timer. In my opinion, Slater has done enough to meet UK and European standards of originality. Because Slater is British, European standards apply; PETA brought the case in the USA for two reasons, more sympathetic courts, and the existence of the figure called “next friend”, which can be used in situations in which a person cannot bring a case on their own, for example, a child. If the case had been brought in Europe, it is my contention that Slater would have won outright.
I am aware that there are plenty of people who disagree with this view, and to this day many claim that the image is in the public domain. The settlement does nothing to change the controversy.
The legal issues in this case are fascinating because technology is increasingly allowing creations by non-humans, animals taking pictures, robots producing art, etc. In many jurisdictions, such works do not have protection, but we may have to revisit copyright legislation to bring about legal certainty.
I have a feeling that we have not heard the last from Naruto the monkey and simian copyright.
1 Comment
Andy J · September 18, 2017 at 9:20 pm
Andres,
I’m not as sure as you about what would have been the outcome if the case had come before an English/European court. Under the older UK doctrine of sweat of the brow, maybe, but recent CJEU decisons such as Infopaq have placed the stress of the creation of the mind aspect, which I feel may not sit well with, for instance, the ‘person who made the arrangements.. ‘ criterion of sect 9(3) CDPA with regard to computer generated works, which is largely what you argue Slater did in this instance.
But as you say, we have been denied that certainty.
I would like to highlight something which few commentators have mentioned. That is David Slater’s role in ths case. He wasn’t subject to the jurisdiction of the US Ninth Circuit and didn’t need to incur the cost and stress of defending the case. That he did means that PETA did not get a default judgment in their favour which would have been the probable outcome if he hadn’t taken part; I think his co-defendant Blurb would have bailed early on since it really wasn’t their fight. That’s why it is vital that the Federal Court of Appeals doesn’t accede to the petition to vacate the lower court’s decision concerning monkeys holding copyright.