Monkey See, Monkey Sue: The Issues In PETA Selfie Case

April 14, 2016

By Jose Sariego

Leave it to PETA to get your goat. Or in this case, your monkey.

You see, the folks who brought you animal bloodbaths and other splashy confrontations to highlight the plight of animals at the hands of humans have now filed a lawsuit on behalf of a macaque monkey who claims she has a copyright to selfies she took of herself.

The selfies were taken during a 2011 trip to Sulawesi, Indonesia, by British nature photographer David Slater. He later published a book called "Wildlife Personalities" that includes the “monkey selfie” photos. The selfies went viral and have been widely distributed elsewhere by outlets, including Wikimedia, which contends that no one owns the copyright to the images because they were taken by an animal, not a person.

People for the Ethical Treatment of Animals contends that the monkey, named Naruto, is the true owner of the copyright, being that apparently it was Naruto and not Slater who took the photos. The case, filed — where else? — in California was quickly dismissed by a not-too-amused federal judge, who concluded that monkeys and their ilk (i.e., nonhumans) are not covered by the Copyright Act of 1976.

Last year, the U.S. Copyright Office stated that it would register copyrights only for works produced by human beings. It specified that works produced by animals, whether a photo taken by a monkey or a mural painted by an elephant, would not qualify. However, PETA maintains that the Copyright Office policy “is only an opinion” (never mind that the Copyright Office is the congressionally appointed arbiter of copyrights) and that the Copyright Act itself does not contain language limiting copyrights to humans. (Nor, I would add, does the law exclude plants, rocks or extraterrestrials either, assuming they would be interested in taking selfies of themselves prior to overrunning the planet.)

PETA made a similar argument to the judge, who didn't buy it. After reviewing applicable precedents and congressional intent, the judge concluded that Naruto — talented as she may be — is not an "author" within the meaning of the act. Consequently, he dismissed the case.
PETA has now appealed the ruling to the Ninth Circuit. It will be interesting to see what the appeals court has to say on the matter. There is an increasing interest in animal art, what with creative elephants and whales getting into the act. So this issue deserves some attention because there's money to be made here. And where there's money, there's lawsuits.

The case raises some interesting legal issues. If Naruto is not the author, then who is? Slater did not take the photos, so are the photos in the public domain as Wikimedia claims in a dispute with Slater? Did Naruto take the photos as a "work-for-hire" for Slater? Was Naruto Slater's employee, in which case is Naruto entitled to health benefits and worker's compensation protection? What is the position of talent union SAG-AFTRA in all this?

Second, isn't this a case of Naruto's rights of publicity rather than copyright? After all, her image was used for a commercial purpose, i.e., Slater's book and Wikimedia's site, without her consent. (Can an animal consent? See below.) So shouldn't Naruto be compensated in the same way that Kim Kardashian or Michael Jordan would be if their selfies were similarly used? Rights of publicity are determined by the states, not narrow-minded Congress, so perhaps the more liberal minded representatives of, say, California could be persuaded to extend publicity rights to animals.

(On the issue of consent, I once had occasion to consider whether famous YouTube star DJ Dog could sign a release to appear on a show segment. After much teeth-gnashing, we concluded that DJ Dog's owner could sign the release on the dog's behalf. Fortunately, this predated the Naruto case, or we may have had to obtain PETA's consent as well, being they apparently represent all animals on the planet.)

Third, Naruto has hired herself a lawyer from Irell & Manella LLP, the same firm that represents PETA in the case. Isn't there a conflict of interest here? Does the attorney-client privilege apply to communications between animals and human lawyers? Can Naruto sign a binding engagement letter with the firm? (See discussion above re DJ Dog.) Naruto is only 6 years old — has she even reached the age of majority in California to sign a binding contract? How will Naruto pay the firm? And what if Naruto decides to hire herself an agent from Creative Artists Agency or William Morris Endeavor?

Thorny issues indeed. Perhaps thorny enough eventually to reach the U.S. Supreme Court. Let's hope so. I can only imagine what the justices' questions will be from the bench. Oh, if only Justice Antonin Scalia were still alive to hear this case!

This article is reprinted with permission from Law360.

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