A judge in California has dismissed a copyright case brought by People for the Ethical Treatment of Animals (PETA), where the animal rights organisation claimed that it represented the monkey that took the famous selfie depicted above. The case is that of Naruto v Slater, where PETA sued British photographer David Slater for copyright infringement, claiming to be acting on behalf of Naruto the monkey.
I had written an opinion about the case when it was first filed, and I am glad to report that the decision has not produced any surprises. As most legal analysts predicted, the judge dismissed the case based on the fact that the monkey has no standing, as it cannot be considered an author for the purposes of the law and therefore it does not have copyright, so PETA cannot act on behalf of the monkey. The decision makes perfect sense according to US law, but I still argue that those who claim that the picture is in the public domain are right in the US, but wrong in Europe, and the current case does not affect my European analysis. Allow me to elaborate based on the decision and the facts of the case.
PETA argued in their complaint that Naruto had taken the picture and that he “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“. They argued that photographer David Slater, the owner of the camera used to take the selfies, had infringed such copyright when he had used a self-publishing online tool to produce a book called Wildlife Personalities, which included the famous monkey selfie picture. The lawyers representing Slater answered the claim with a motion to dismiss based solely on the fact that the monkey did not have standing because it could not sue for copyright. This is quite interesting, while this strategy is the easiest way to obtain a dismissal, I find what is missing from this motion as important as what is there. There is no mention of jurisdiction, and there is no mention of Slater as the copyright owner. I think this is on purpose, as I shall explain a bit later.
Judge Orrick pretty much agrees wholeheartedly with the defendant in his decision. Both the judge and the defendant decided to take the facts of the case as told by the plaintiff as true for the purpose of the dismissal, these facts are that Naruto is a crested macaque who lives in a reserve on the island of Sulawesi, Indonesia; that he is highly intelligent, and that he took the pictures by “independent, autonomous action” in 2011. The judge then dismisses the complaint with the simple argument that animals do not have standing in a court of law, and therefore cannot sue for copyright. The judge clearly states that the US Copyright Act does not extend the concept of authorship to animals and therefore Naruto is not an author.
I completely agree with this interpretation, and with those who see this as a victory for sanity in copyright law. However, I also think that the case of ownership and authorship of the pictures is not closed, and here I disagree with the always excellent Techdirt, as I think that there is a very strong case to be made for ownership by Slater in Europe, and I think that the PETA suit does not close the argument about ownership.
Firstly, the facts of the case as discussed in this instance are disputed by the defendant, who calls them “fundamentally erroneous”, but Slater’s lawyers decided not to argue them as a legal tactic, as even the facts presented by PETA were enough to warrant a quick dismissal. But the facts as told by Slater are important in a European analysis of the case. As I have mentioned elsewhere, European law is less concerned with who actually pressed the button, and it places more emphasis on whether the work reflects the personality of the author (see Infopaq), and whether the photographer made important decisions about aperture, lighting, camera settings, and even placing a tripod (see Painer). In most of the accounts of the origins of the selfie, it is clear that Slater had considerable control in the setting of the conditions that led to the monkey taking the picture, and also selected the pictures afterwards, an action that reflects his personality. All of these actions would be enough to give him authorship as the creator of an original work.
Secondly, we have not even started to consider the potential jurisdictional issues of the case. The picture was taken in Indonesia, and Slater is a British citizen, so why would a US court have jurisdiction over the dispute? PETA argued that they could sue in California because Slater had used US-based company Blurb to publish his book, but this in itself is not enough to give the court jurisdiction, as the website has a UK version, and if Slater used that it would mean that the US jurisdictional claim would be weak. To me the fact that Slater’s lawyers did not make a jurisdiction argument is quite telling, as they may be reserving this for future cases.
Thirdly, Judge Orrick’s decision is very narrow. Slater’s lawyers filed a very concise motion to dismiss that is solely based on the fact that animals cannot sue for copyright, and Judge Orrick’s decision mostly deals with that fact. While the Judge makes a valid declaration that the monkey cannot sue because he cannot own the copyright, he never rules on whether Slater is the owner of the picture, as this was never a part of the proceedings. The case is only whether Naruto is a copyright owner, and here the judge decided correctly. But the judge was never asked to rule if the picture is in the public domain, or if the Slater is the author. This was cleverly left out by the defendants, so to me the question is still legally open to interpretation.
Concluding, I always felt that PETA filed the suit as a publicity stunt attempting to further the issue of animal rights. Their case was interesting, but legally weak, as evidenced by the quick dismissal. However, in my opinion it doesn’t close the debate of whether Slater can claim copyright over the pictures, and it certainly does not close the argument from a European perspective.
I do not think that we have heard the last of this case. The monkey selfie may very well be the gift that keeps on giving.
Edited to add: Interestingly, Slater had the pictures registered by the US Copyright Office in 2012! This is a requirement for copyright litigation in the US. The plot thickens.