Legal analysis of the PETA monkey selfie suit

More monkey business

Just when you thought that the monkey selfie story had ran its course, People for the Ethical Treatment of Animals (PETA) have sued the photographer David Slater and his company Wildlife Photography to try to get the copyright of the image given to Naruto, the macaque monkey at the heart of the story.

The case is Naruto v Slater, where the plaintiff is PETA acting on behalf of Naruto as “his Next Friends“. The plaintiffs claim that the famous monkey selfie pictures “resulted from a series of purposeful and voluntary actions  by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by  Naruto.” They argue:

“Naruto has 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 should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his behalf by the Next Friends.”

Do they have a point? I was tempted to dismiss the case outright, the litigation could be motivated by trying to further animal rights by attempting to have a court declare for the first time inter-species copyright ownership. I do think that there are a few interesting legal issues, although the case may simply come down to a question of jurisdiction.

The facts

The facts of the case could be very important for copyright purposes, and those listed in the copyright complaint seem to differ from the facts as retold by Slater. He writes:

“I wanted to keep my new found friends happy and with me. I now wanted to get right in their faces with a wide angle lens, but that was proving too difficult as they were nervous of something – I couldn’t tell what. So 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. Was this what they where afraid of earlier? Perhaps also the sight of the shutter planes moving within the lens also amused or scared them? They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on, but I was being prodded and poked by would be groomers and a few playful juveniles who nibbled at my arms. Eventually the dominant male at times became over excited and eventually gave me a whack with his hand as he bounced off my back. I new then that I had to leave before I possibly got him too upset. The whole experience lasted about 30 minutes.”

In another interview he claims that the session produced hundreds of pictures, mostly out of focus or unusable, and he selected only a few, including the now famous smiling monkey selfie.

US law

While it may still happen that the case will be laughed out of court, the dispute could prove to be interesting because PETA may have identified an interesting quirk in US copyright law (please note that I am not a US copyright scholar). In a series of cases about alien and/or spiritual dictation of a work, US courts have found that “copyright laws . . . do not expressly require ‘human’ authorship”, and that the source of inspiration of a work is irrelevant (See Urantia Foundation v. Maheera and Urantia Foundation v. Burton respectively).

Furthermore, one of the arguments presented by some at the time the story first broke out in favour of the image being in the public domain was that the law requires registration in order for the work to be subject to enforcement in court, and the US Copyright Office has set out policies contemplating that only humans can register a work (see Compendium of Copyright Practices). But what many people missed at the time, and the plaintiffs have delightfully used, is that the picture was taken in Indonesia, and it is therefore exempt from registration in the US according to § 411 becuse it is not a “United States work” as defined by § 101.

However, while the above could in theory open the door to non-human copyright, the plaintiffs would still have to jump a very large hurdle, namely originality and creativity. My understanding of US copyright law in this area is that in Baltimore Orioles v. MLB Players Association the 7th Circuit court found that “[a] work is original if it is the independent creation of its author. A work is creative if it embodies some modest amount of intellectual labor.” In Feist v Rural Telephone, the US Supreme Court emphasised that “copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.”

It may be fair to say that the monkey selfie may not fulfil those requirements.

UK and European law

Having said that, it is important to state once more that David Slater is a UK citizen, and as such we need a European interpretation, which I believe is entirely more in favour of Slater’s ownership. My earlier analysis of the situation from a UK and European perspective follows.

The UK CDPA is silent with regards to simian copyright, but it has an area that we could use as an analogy, computer-generated works. S 9(3) of the CDPA states that the author of a literary, dramatic, musical or artistic work which is computer-generated “shall be taken to be the person by whom the arrangements necessary for the creation of the work.” The law therefore is more than willing to accept that a non-human entity can generate a work subject to copyright protection as long as the author of the process that led to the creation of the work can be identified. In this case, that would be the Mr Slater.

Furthermore, Art 6 of the Copyright Term Directive (2006/116/EC) usefully explains that “Photographs which are original in the sense that they are the author’s own intellectual creation shall be protected…” The Directive’s preamble defines original as a work that is the “author’s own intellectual creation reflecting his personality”. The Court of Justice of the European Union interpreted the meaning of originality in Infopaq, where the Danish news-clipping service Infopaq International was taken to court by the Danish newspaper association over its reproduction of news cuttings for sale to its clients. The clipping process involved a data capture process consisting of scanning images of original articles, the translation of those images into text, and the creation of an 11-word snippet for sale to Infopaq’s clients. The court had to determine whether these snippets were original enough, as the process was highly mechanised. The most relevant part of this case for me is that the CJEU gave a lot of importance to the intellectual act of selection and arrangement of the snippets. Talking about word selection, the court said:

“Regarding the elements of such works covered by the protection, it should be observed that they consist of words which, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation.”

How is this analogous to the monkey taking the picture? There is obviously the setting up of the camera before, but most important for me, it is the selection process that came after the picture was taken. If you check the original account of the incident, what happened was not only an isolated act of a monkey taking a picture, it took hundreds. David Slater told the newspapers: ‘He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn’t worked that out yet.’

So there was an intellectual exercise in the selection of the hundreds of pictures, enough in my mind to meet the requirement in the law of an intellectual creation “reflecting his personality”. We universally recognise that the mechanical act of taking a picture itself is not what gives it copyright, what matters is what happens before and after.

Jurisdiction

So the case may end up resting entirely on a jurisdiction question. PETA has sued in a California court because Slater published a book called Wildlife Personalities using the self-publishing service Blurb, a Delaware company that allegedly ships all of the printed material from a San Francisco warehouse. The plaintiffs claim that this is enough to grant them standing in the US. They do agree that Slater is a UK citizen, and that his company is also based in the UK, but they are using the fact that Blurb is an American company to establish jurisdiction.

However, Blurb has a UK website that accepts payment in GBP, so it is entirely possible that Slater used that service thinking that it was based in the UK. It would seem far-fetched that using a .co.uk site, and paying in British pounds would open one up to US jurisdiction only because the site is run by a US company. PETA has offices in the UK, so they can surely sue in an English court, the reason that they have not done so may tell us quite a lot about what the view as the strength of their case.

Furthermore, one would have to argue PETA’s standing as Naruto’s friend. They have managed to bring into the action Dr Antje Englehardt, a conservationist who works with the macaque monkeys in Indonesia, who they claim has taken care of Naruto since birth. I find it difficult to stomach the argument that this would give them enough connection to make copyright claims over an animal. Similarly, there is little evidence that they have identified the exact monkey (initial reports said that it was a female monkey). It seems bizarre that being in proximity to the monkey would be enough to grant standing in a court of law.

Concluding

There is something quite distasteful about the case, particularly because it just appears to be either a money-grabbing exercise, or a convoluted PR stunt. There is an interesting jurisdiction question at the heart of it, and I for one would be extremely dissatisfied if it was possible for a US organisation to sue UK citizens just on the basis of using an Internet intermediary. That way madness lies.

One thing is clear to me, given the headlines coming out of the UK in recent days, at least we have to be thankful that the selfie involves a monkey and not a pig.