Last August we wrote about a dispute between photographer David Slater and the Wikemedia Foundation over what is known as “The Monkey Selfie.” Because we’re brave, the photo appears again in this post. At that time, the Copyright Office released a public draft of the Third Compendium of U.S. Copyright Practices, in which it took the explicit position that photographs taken by monkeys are not copyrightable subject matter because they are not “the fruits of intellectual labor that are founded by the creative powers of the mind.”
Fast forward to this week when Naruto, the monkey in question, along with his “next friends” PETA (People for the Ethical Treatment of Animals, Inc.) and Antje Engelhardt, Ph.D., filed suit against Slater, his publisher, and another party, claiming that Naruto is, in fact, the owner of a valid copyright in the Monkey Selfies (there are more than one) and that the defendants infringed that copyright by republishing the photos in a book entitled “Wildlife Personalities.” The book includes a general copyright ownership claim to the photographs and text of the books, but does not include notice on each photo. Thus, it is not clear that Slater intended the general claim to apply to the Monkey Selfies.
The plaintiffs describe in some detail the process by which Naruto experimented with the click of the camera and the alteration of her image in the lens resulting from pushing the shutter button. The crux of the Complaint, however, boils down to this allegation: “The Monkey Selfie resulted from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto.” If Nartuto and PETA cannot establish that the photos were the result of “purposeful and voluntary actions” they are unlikely to succeed, assuming of course that they can get by the fact that Naruto is, well, a monkey. At this time there are no indications that Dr. Doolittle or someone with similar talents will be asked to testify.
The Complaint seeks a declaration of Naruto’s rights, an injunction against use of the photos, an accounting of all profits attributable to the infringement and appropriate damages, permission for the Next Friends to administer and protect Naruto’s rights, an order that the proceeds from the sale, licensing, or other use of the photos be used solely to benefit Naruto and his community, and full costs and attorneys’ fees (to which even a successful foreign monkey is not entitled to unless his/its copyright is registered prior to the commencement of the infringing act).
Primates everywhere will be watching this case with great anticipation. Unfortunately, Naruto was unavailable for comment.