By Hardy Hewson
How much can a selfie really be worth? For British photographer David Slater, about six years of legal fees and over $10,000 in royalties.1 The legal battle concerning the copyright of a wildlife photograph ended earlier last year when Slater agreed an out of court settlement with animal rights organisation People for the Ethical Treatment of Animals (PETA).
The dispute concerned an image taken during Slater’s travels on the island of Sulawesi, Indonesia, where he was photographing indigenous macaques. However, the photograph in question was not taken by Slater, but rather by one of his subjects: a macaque locally known as Naruto.
The perfect selfie is hard to come by, even when the subject is a human. No wonder then, that Mr. Slater sought to protect the image of a wide-eyed and grinning Naruto. The image quickly rose to prominence among enthusiasts of animals on social media, up there with the YouTube compilations of cats playing piano.
While Slater contests that the selfie was the result of a lengthy process of coaxing the monkey into cooperating, a legal dispute over ownership ensued when Slater requested that the blog Techdirt and online encyclopaedia Wikipedia stop using it without his permission. In doing so, the British photographer invoked the Digital Millennium Copyright Act (DMCA, 1998), a U.S. copyright law that codified the two treaties of World Intellectual Property Organisation (WIPO) from 1996. (For more information on the DMCA and its provisions, see this blog post)
Wikipedia contested Slater’s notice of copyright infringement, and the matter was brought to the attention of the US Copyright Office. In August 2014, the Office stated that “because copyright law [largely determined by the Federal Copyright Act of 1976] is limited to ‘original intellectual conceptions of the author,’ the Office will refuse to register a claim if it determines that a human being did not create the work.” 2 Additionally, it suggested that any claim of copyright by a human must evidence sufficient creative contribution. Slater has consistently argued that his contribution to the picture is evident; in a BBC interview in 2014, the photographer stated, “I set the camera up on a tripod, framed [the shot] up and got the exposure right… and all you’ve got to do is give the monkey the button to press and lo and behold you got the picture.” 3
Thus, according to the Copyright Office, Naruto the Macaque was unable to reap the benefits of the copyright himself. Further, despite his claims to the contrary, a ruling by a San Francisco court established that Slater made no sufficient creative contribution to claim the copyright either. Legal questions over the nature of authorship meant that Slater was unable to benefit from the rights to the image, and the photographer was subsequently forced to pursue alternative occupations, such as coaching tennis and dog-walking in his native England.
The issue was revisited in 2015, when Peta sued Slater on behalf of Naruto. The organisation claimed that the macaque was the rightful copyright owner of the selfie, even though the Copyright Office had previously determined this was improper. In January 2016, U.S. District Judge William Orrick restated the interpretation of the Copyright Office that that U.S. Copyright Act did not extend to animals, and that Naruto had no standing to sue. The decision maintained that a photograph taken by a monkey could not be copyrighted by the animal itself and that Slater had not made a sufficient creative contribution for the copyright to be granted.
Not satisfied by the District Court’s decision, Peta appealed to the 9th Circuit Court of Appeals in San Francisco, which heard oral arguments in July 2017. At appeal, Judges N. Randy Smith and Carlos Bea considered several questions, including: whether the macaque and Peta were sufficiently close for the latter to act as a legal representative; the value of a notice of copyright to a macaque; and importantly whether Naruto was harmed by not possessing the copyright. Judge Smith questioned the existence of a legal injury sustained by Naruto, stating of the macaque, “There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto.” 4 Ultimately, the 9th Circuit reaffirmed that the 1976 Copyright Act provided no legal standing for an animal to claim copyright.
Shortly after the decision, Slater reached a settlement with Peta where the parties agreed that the photographer would donate 25% of any future revenue made from the image to charities seeking to protect the crested macaques of Indonesia. The settlement meant that Slater would once again benefit from the image, allowing him to continue to work as a photographer. Awaiting a ruling from the 9th Circuit panel of judges, both parties requested that the case be dismissed, along with a lower court decision stating that animals cannot own copyrights. These requests were granted by the Court.
As recognised in a joint statement by the parties, this case raises significant issues for the future of the legal rights of non-human animals. In an era where human life is steadily encroaching on the natural world, laws must exist to both regulate and protect the environment as well as its nonhuman inhabitants. As the foundation of human society, how is the rule of law extended to provide animals with at least some legal protection? While copyright does not currently fit within these bounds, the parties rightly share the common goal of expanding these rights, thereby institutionally protecting animal populations in the future.