Copyright Ownership, Taught by a Monkey

Can a monkey take a selfie? Yes. 

Naruto, a seven-year-old crested macaque in Indonesia, proved that it was not only possible, but that a monkey could take a pretty darn good selfie.  But, the real question, one that has been fought in the courts since 2015, is who owns the copyright to that image?  As of April 23, 2018, the United States Court of Appeals for the Ninth Circuit has decided that the monkey does not.[1]

In 2011, David Slater, a wild-life photographer (and a human), was taking pictures in a wildlife preserve on the island of Sulawesi, Indonesia.  When he left his camera unattended, a crested macaque now famously known as Naruto picked up his camera and took several photographs of himself.  Those pictures were later published by Slater, and the pictures went viral.  P.E.T.A. then sued Slater on behalf of Naruto for copyright infringement, saying that Naruto, the macaque, was the real owner of the copyright.  After several years of court battles, the Ninth Circuit Court of Appeals has now decided that Naruto cannot own the copyright because the Copyright Act does not provide for animals owning copyrights.[2]

Under most circumstances, the owner of a copyright is the “author” or creator of the work.  Unless the work of authorship was specifically made for hire under certain circumstances, the individual who wrote the book, painted the canvas, carved the sculptural, or took the photograph is the one that owns the copyright to a particular work.  It is that individual who has the right to reproduce, publish, sell, or otherwise control the use of the work.

In the case of Naruto, under that broad definition of authorship, it would seem that Naruto should own the copyright.  Slater had no part in the creation of the image, other than simply leaving his camera unattended.  But, in case you forgot, Naruto is monkey. 

The Ninth Circuit relied on a 2004 case, involving a suit brought in the name of all whales alleging injuries from the use of the Navy’s sonar systems.[3]  In that case, the court decided that since the applicable statute did not specifically grant animals the right to sue, animals did not have the right to sue.  It argued that Congress, if it wanted, could grant animals the right to sue under a given statute, but that Congress had not yet done so. 

The court in Naruto v. Slater then went on to look at the various words and phrases used in the Copyright Act that impliedly refer only to humans (e.g. that the copyright could be passed down to the wife or children of the author and animals cannot marry), and concluded that Congress had not granted animals the right to own a copyright or bring a suit for copyright infringement.  As a result, the lower court’s dismissal of the lawsuit was affirmed, and Naruto’s aspirations of being an internationally known photographer were crushed.

Even though my wife says I act or smell like a monkey sometimes, the simple fact remains that monkeys are not humans.  As taught in the case brought by Naruto the macaque, just as a monkey cannot own a house or car or any other property it cannot own a copyright and cannot bring a lawsuit for infringement. 

[1] See Naruto v. Slater, No. 16-15469 (9^th Cir, April 232, 2018); which opinion can be found at:  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/23/16-15469.pdf

[2] See also https://www.cnn.com/2018/04/24/us/monkey-selfie-peta-appeal/index.html

[3] Cetacean Cmty. v. Bush, 386 F.3d 1169 (9^th Cir. 2004).