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In a prior blawg post, I discussed the strange case involving British nature photographer, David Slater, and his claims of ownership over a photo “selfie” that had been “taken” by a monkey (the “Monkey Selfie”) and were uploaded to Wikipedia without his permission. In its defense, the Wikimedia Foundation (the owners of Wikipedia) refused to take down the Monkey Selfie, arguing that, since monkeys can’t hold copyrights, the images are in the public domain.

The Selfie in Question

The Selfie in Question

Last week, People for the Ethical Treatment of Animals (“PETA”) decided to join the fray. It filed a Federal lawsuit claiming that the Monkey Selfie taken by the monkey (whom they have named in the suit as Naruto), came from a “series of purposeful and voluntary actions by Naruto, unaided by Slater” and, as such, “Naruto has the right to own and benefit from the copyright…in the same manner and to the same extent as any other.” PETA said it decided to file the lawsuit against Slater on behalf of the monkey because the monkey could not “due to inaccessibility and incapacity” and claimed jurisdiction in the US courts because Slater’s book was published in the US.

Not surprisingly, PETA’s Complaint asked the court to declare that Naruto, not Slater, is the author and owner of the copyright to the Monkey Selfie and to declare that Naruto is entitled to an award of damages.

I have been practicing law for over thirty years. I recognize (and frequently note in this blawg) that there are flaws and ambiguities in the US copyright statute. However, to claim that the term “author,” as used in the statute, applies to animals as well as humans, is just absurd. Nothing in the Copyright Act would suggest that it is intended to cover works created by anything other than a human being. While the Copyright Act does not specifically define the term “author,” that term is used in portions of the law and the context of such uses makes it clear that an author must be either a person or, in the case of a work made for hire, the person or legal entity (e.g., corporation, partnership, LLC) that engaged such person to create a work. For example, the term “anonymous work” is a “work on the copies…of which no natural person is identified as author.” A “joint work” is defined as a “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”

Clearly, the copyright law was not drafted to take into account the intentions of animals. Just as clearly, animals cannot “own” property. Even in cases of monetary disputes involving animals (such as the famous Leona Helmsley case in which she left $12 million in her estate to her pet dog), the animal is not the “owner” of the property but merely is a beneficiary of a guardianship set up to assure its care. The issue here has absolutely nothing to do with animal welfare. Instead, it is quite simply a case that is based on a farcical argument that animals are entitled to the same property ownership rights as are humans.

In another recent case, The People of the State of New York ex rel The Nonhuman Rights Project Inc., on Behalf of Tommy vs. Lavery, a New York appellate court rejected a lawsuit by the Nonhuman Rights Project (NhRP) to free a chimp named Tommy from captivity. The group had argued that the chimpanzee deserved the human right of bodily liberty. The court stated that chimpanzees, although cognitively complex, aren’t entitled to the same legal status as human beings. While the issue in the New York case did not involve property rights, it is illustrative of the law’s view of creating an equivalency between humans and animals under the law.

Even if PETA could successfully argue that the monkey is entitled to own property (and I certainly do not believe that is the case), PETA’s claims still must fail in this action. The original Monkey Selfie case involved the creation of a photo utilizing technology that allowed the picture to be taken remotely, but the copyright claim extended to the composition and setup of the photograph, not to the technical action of snapping the photograph. That is why the Slater court felt that Slater did own a copyright to the photograph even though the picture was “taken” by the monkey by virtue of its having pressed a button. In this case, PETA seems to be alleging that the mechanical act of snapping the photograph amounts to copyrightable expression created by the monkey—something that would not be considered to be copyrightable even if done by a human.

This case is another example of frivolous litigation that clogs the nation’s courts and lowers peoples’ view of the rule of law. It is, in a word, bananas. Hopefully the court will not allow PETA to make a monkey out of it in this process.