Despite settlement, federal court rules on 'monkey selfie'

The "monkey selfie" case settled last fall but, on April 23, the U.S. Court of Appeals for the Ninth Circuit nevertheless issued a decision in an appeal of the matter. Naruto v. Slater, WL 1902414 (9th Cir. 2018). The monkey made out handsomely in the settlement, but did not fare well before the courts. A brief recap: In 2011, British nature photographer David Slater travelled to Sulawesi, Indonesia, to photograph the endangered Celebes crested macaque. This was Slater's fourth year traveling to photograph these monkeys; on this trip, he followed a group of monkeys for three days, "befriending" them by day two, reportedly becoming an accepted as a member of their troupe. Slater claims the monkeys were fascinated with his photographic equipment, playing with it and sometimes trying to run off with the camera. Slater attached a wide angle lens to his camera, affixed it to a tripod, adjusted the settings so they would be optimized for close-ups and left the camera's remote shutter trigger strategically nearby. As Slater steadied the tripod, the monkeys approached, fascinated with the camera and gear, ogling the lens while playing with the remote trigger and snapping many shots. The photo session ended with a dominant male monkey bounding off Slater's back, but not before creating a new category of selfie: a photo of a monkey taken by a monkey. The British press published several of the monkey selfies Slater licensed to the media with a press release containing quotes about his experience. Publishing copies of the monkey selfies in newspapers gave the public access to them. That was when trouble began. Someone posted a copy of one of the monkey selfies on Wikipedia, prompting Slater to demand Wikipedia remove the photo because it had no license. Wikipedia, however, declined, claiming that the selfies were created by monkeys who cannot create a copyrighted work, so the selfies are in the public domain. An internet technology blog, "Techdirt," picked up the story and also posted a copy of one of the monkey selfies, claiming, as Wikipedia did, that the selfies were in the public domain. The U.S. Copyright Office in 2014 updated its rules to clarify that a work of authorship produced by an animal does not qualify for copyright protection. In 2015, Slater published a book, Wildlife Personalities, including the infamous monkey selfies. Naruto the monkey, a 6-year-old macaque, was credited as being the mischievous monkey who snagged the remote to the camera, snapping the selfies. One photo, a self-portrait, became the most reproduced and widely distributed of Slater's simian selfies. As a next friend to Naruto the monkey, People for the Ethical Treatment of Animals (PETA), commenced an action against Slater and his publisher, claiming Naruto was the copyright owner of the selfies and, hence, that Slater and his publisher had infringed Naruto's copyrights. In 2016, the lower court, in an opinion by U.S. District Court Judge William Horsley Orrick, dashed Naruto's hopes of artistic recognition, dismissing the case and holding that the Copyright Act does not confer standing upon animals, but not before acknowledging that Naruto was "highly intelligent" possessing "grasping hands and opposable thumbs with the ability to move his fingers independently." Orrick accepted as true that Naruto had spent years around and was comfortable with tourists and photographers and that Naruto "purposefully" pushed the shutter release button and understood "the cause and effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens." The court relied on The Human Authorship Requirement, a then-recent amendment to the Compendium of the U.S. Copyright Office Practices which was prompted by Wikipedia and Techdirt's legal arguments about the same monkey selfies in this case. So, fundamentally, Naruto's selfies caused the Copyright Office to issue a clarification regarding non-human copyright claimants, which caused Naruto to lose his action for copyright infringement. Naruto, thus, was the author of his own demise. Naruto, appealed, which brings us to present day. PETA and Slater settled the case last fall, Slater agreeing to pay 25 percent of his future royalties from the monkey selfies to organizations dedicated to habitat protection in Sulawesi, Indonesia. The U.S. Court of Appeals for the Ninth Circuit elected to rule on PETA's appeal, despite the parties' settlement of the claims. The Ninth Circuit held that PETA lacked standing as a next friend of Naruto, but nevertheless determined that the monkey - in his own right - had constitutional standing to seek redress of his claim. The court relied on an earlier Ninth Circuit decision granting standing to a group of plaintiffs composed of whales, dolphins and porpoises. But in opening one door, the court quickly closed another. Finding that the "Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute," the court found that Naruto lacked standing to proceed with his suit under copyright law. ----- Mark Costello is a partner at Boylan Code LLP in Rochester, New York. Published: Thu, May 17, 2018