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NYC Litigation Blog

Thursday, January 21, 2016

Court Rules Monkey Can’t Hold Copyright

Have you seen the “monkey selfie”? The charming photo has been making the rounds on the internet as a court has been considering who holds the copyright to the photo. Does the photographer who set up his equipment near the monkeys own the photo, or does the monkey who snapped the shot? We have been following this case for a couple of reasons: 1. Who doesn’t love monkeys?! 2. It might have important implications for copyright law. 

The facts.

In 2011, British photographer David Slater traveled to the Tangkoko Reserve on the Indonesian island of Sulawesi to do some nature photography. According to Slater:

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 [of a group of crested macaque monkeys] 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 overexcited and eventually gave me a whack with his hand as he bounced off my back. I knew then that I had to leave before I possibly got him too upset. The whole experience lasted about 30 minutes.

Slater published a book, “Wildlife Personalities,” that included the pictures, and the images were widely shared online, including without permission by Wikipedia. Slater asked that the photos be taken off Wikipedia, but the site editors refused, claiming that the images were in the public domain since they were not taken by a human.

While Slater’s argument with Wikipedia was unfolding, the animal rights group People for the Ethical Treatment of Animals (PETA) filed a lawsuit in federal court in California arguing that the photos rightly belonged to the monkey, which they identified as Naruto. PETA asked the court to grant Naruto copyright, and to allow PETA to administer funds generated by the copyright on the monkey’s behalf.

Slater asked the judge in the case, U.S. District Judge William Orrick, to dismiss the lawsuit on the grounds that a monkey lacks legal standing.

Judge Orrick recently released a tentative opinion in the case, and he is siding with Slater.

“I’m not the person to weigh into this. This is an issue for Congress and the president,” Orrick said from the bench, according to Ars Technica. “If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that.”

Why this case matters.

This case is important because it highlights the new frontier of copyright law into which the digital age has delivered us. Slater set up his equipment, and worked to compose the shot, but he didn’t actually press the button to take the picture. This is similar to lots of work today where business owners set things up to be created or captured, but they don’t press go, something or someone else does. We are truly in a new frontier, and we must ensure that the law is able to match reality going forward.

Contact Thomas M. Lancia PLLC for your copyright needs.

If you have questions about a copyright issue you or your business has encountered, contact Thomas M. Lancia PLLC to schedule a free, initial consultation


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