We don’t waste any time with monkey business over here at IP Whiteboard…until it involves one of our favourite stories of recent times, combining our love of selfies with copyright and cute animals.

This story is of course the tale of wildlife photographer David Slater, who claimed copyright ownership over some selfies taken by macaque monkeys in Indonesia using his camera (see here).

Slater published a book that included the photos, but the photos were also widely distributed by media outlets, including on Wikipedia. Wikipedia considered that because a monkey took the photos, and apes couldn’t claim copyright, the images had no owner.

Slater has continued selling copies of the photographs, as well as his book. The People for the Ethical Treatment of Animals (“PETA“) have now filed a suit in federal court in San Francisco seeking a court order allowing PETA to administer all proceeds from the photos for the benefit of the monkey and its habitat.

The named plaintiff is identified as Naruto, a crested macaque.

Lawyers from PETA who filed as the monkey’s “next friend” (a term used by those filing for those who cannot file themselves), consider that the US Copyright Act does not contain language limiting copyrights to humans, and that copyright belongs to the ‘being’ who took the photo. The complaint claims that “Naruto has the right to own and benefit from the copyright … in the same manner and to the same extent as any other author”.

As in Australia, the US Copyright Act protects “original works of authorship”, but “authorship” is not further defined. The US Copyright Office has issued guidance stating that to qualify as a work of “authorship”, a work must be created by a human being. It advises that it would not register works “produced by nature, animals or plants” (or, interestingly, works “purportedly created by divine or supernatural beings”) (see section 313.2 of the guidance). Its first example of such works is, somewhat pointedly, “a photograph taken by a monkey”. However, registration is not actually a precondition of copyright protection in the US (although for works of US origin, registration is necessary before you can sue for infringement), and the guidance from the Copyright Office is just that –guidance.

Slate reports that in its view, this case is the next in an unsuccessful line of animal personhood cases (writing that this year, for example, a state court judge in New York rejected a suit seeking a writ of habeas corpus that would have freed two chimps from a research laboratory in New York on the basis that they were being wrongfully imprisoned). PETA might also have a tough time in Australia, as under our Copyright Act 1968 (Cth), “author” in relation to a photograph is actually defined as the person who took the photograph. The furthest we might get is that under the Acts Interpretation Act 1901 (Cth), expressions used to denote “persons” generally include “body politics or corporates, as well as an individual”. Unfortunately for Naruto, no reference is made to “monkeys”.

There’s a couple of interesting policy points to consider here too – one often put forward rationale of the intellectual property regime is that it serves to incentivise creation and innovation by allowing intellectual property to be financially exploited. Does this rationale apply when we’re talking about conferring copyright ownership on a monkey? Though we have a healthy respect for the intelligence of our animal friends, we think it’s unlikely that we could encourage animal creativity with the lure of monetary reward.

Secondly, even if we assume that Naruto cannot be the author of the photographs, this does not necessarily mean that Slater is either –he didn’t actually take the photographs (although the argument has been raised that Slater was the one that had expended the effort and creative input in arranging the photograph).

Does this mean that copyright simply does not subsist in the photographs? If we say that copyright does not subsist, will this discourage other wildlife photographers from experimenting and publishing their works? This may have a negative impact on another purpose of copyright protection –encouraging creative works to be made available to the public.

We’ll leave you to chimp away at that.