Home » Copyright/Intellectual Property » Did PETA Name the Right Macaque in Its ‘Monkey Selfie’ Lawsuit?

Did PETA Name the Right Macaque in Its ‘Monkey Selfie’ Lawsuit?

29 September 2015

From Motherboard:

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Copyright claimed by David Slater and Naruto

On Tuesday, September 22, People for the Ethical Treatment of Animals (PETA) filed a lawsuit on behalf of a male Sulawesi crested macaque named Naruto, arguing that the monkey owns a copyright in the famous “monkey selfies.”

The lawsuit is against wildlife photographer David Slater, whose camera was used in the creation of the monkey selfies, and publisher Blurb Inc., which published a book of his photography.

In response to the unusual lawsuit, we asked a number of questions. One issue that was not, in the view of some readers, adequately addressed: How did PETA know the monkey in the photo was Naruto, or even that it was a male?

. . . .

Some coverage of the monkey selfie controversy last year identified the macaque as female. The photographer David Slater identifies the monkey as female in his book,Wildlife Personalities. PETA’s own president, Ingrid Newkirk, identified the monkey as female in a 2014 essay arguing that the monkey should own copyright in the photos.

Male Sulawesi crested macaques (also known as Celebes crested macaques and black macaques) are about twice the size of female macaques. They also have “enlarged canine teeth compared to females.” The monkey in the famous “selfie” photo does not have enlarged canine teeth compared to juvenile monkeys.

. . . .

Photographer David Slater told us in an email, “All you need to know is PETA have no proof they are talking about the same monkey. They hope you will buy into their stunt because an expert is willing to say her monkey is the one in my photos without proof. Engelhardt is bringing the Macaca Nigra Project into disrepute.” He added, in reference to the photos being posted on Wikipedia as being under the public domain, “And, WHY aren’t PETA suing Wikimedia for loss of royalties? Important question!”

. . . .

When we asked PETA’s general counsel, Jeffrey Kerr, whether Naruto knew about the lawsuit, he responded, “Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly.”

We also asked if Naruto knew whether the selfies existed. “I have the same response,” he replied.

We then asked whether a monkey could intentionally create a copyrighted work if he didn’t know the work existed. Kerr answered in the affirmative, later clarifying that “He was aware of the cause and effect relationship between pushing the shutter, his reflection in the camera,” but also insisted that we not report he said that the monkey knows his own selfies exist on the internet.

. . . .

For a deeper dive into the legal logic behind this lawsuit, the full interview with Kerr follows.

***

How was the monkey identified?

Naruto is known to the people who work in Sulawesi for the protection of the macaques [the Macaca Nigra Project]. They have known Naruto since his birth in November 2008, and when the story originally broke long ago, they were very much aware of, and recognized Naruto in the photographs.

. . . .

Note: Federal Rule of Civil Procedure 17(c)(2) says:

A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.

PETA is using this rule to represent the monkey in a federal district court.

. . . .

So, my understanding is that the Copyright Office has refused to register the photo, or one of the photos…

My understanding is that they’ve never been asked to register a copy of the photograph. I believe they’ve never refused. And the Compendium is the Copyright Office’s opinion on the state of law but is not authoritative. They’re not the legislative body, they are not a court. And we respectfully disagree with their view on that.

. . . .

How does an animal have standing in federal court on a copyright issue?

Well that’s what we’re arguing. It’s clear that the Copyright Act provides protection for authors of original works and it’s clear by Mr. Slater’s own admission that Naruto is the author of this work. And so we are representing Naruto as his Next Friend because he, like, other parties, can’t come to court on their own. But that is the issue that we believe Naruto should be given copyright protection in this photo in this case.

. . . .

So with all of these hypothetical animals, obviously Naruto is an interesting case because there aren’t many of these… But there are a few instances (where, for instance, elephants create paintings) in which animals have created art and that art is under Compendium rules, not considered copyrightable under US law. What are you basically proposing is that these animals be given copyrights in their work, and whatever organization rushes into the gap first gets to administer those copyrights.

Well, there’s several problems with your questions. First this case is only about Naruto and these monkey selfie photographs. I don’t know the facts and circumstances in which those other works were created, and I don’t know of any actual legal cases that have come down on that. And I’ve already covered that we respectfully disagree with the US Copyright Office’s opinion in their Compendium. But the facts are indisputable that Naruto took these photographs as his free autonomous intentional act that resulted in the original works fixed in a tangible medium. And that’s what the Copyright Act provides protection for. And so he should get that protection and the corresponding benefit for him and his habitat and their population because of the danger they face they need all the help they can get.

Does Naruto know about this lawsuit?

[pause]

Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly. The issue is as I’ve stated it.

Does Naruto know about his selfies?

[pause]

I have the same response.

Naruto certainly knew at the time that he was engaged in intentional conduct that is obvious from Mr. Slater’s own description of the situation. And Naruto clearly engaged in the purposeful intentional conduct that resulted in the creation of the selfies.

Link to the rest at Motherboard

Regarding PG’s use of the photo, he recognizes the copyright claims of both David Slater and Naruto. He believes his use of this photo, regardless of the creator, falls under Fair Use, an exception to the general rule that the author has exclusive rights to control the publication of his/her/its works.

PG won’t go through an analysis, but here’s the text of 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

PG will note that photos are an interesting fair use case under Factor (3) above because, unlike quoting from a written work, using a small portion of a photograph is usually not feasible. Displaying a slice of 10% of the macaque photo would not constitute a meaningful visual that illustrates the copyright issue in question.

Those interested in more information may find Fair Use in the Visual Arts, created by the Center for Media and Social Impact, of interest. A couple of excerpts follow:

The right to make fair use of copyrighted materials is a key tool for the visual arts community, although its members may not always choose to take advantage of it. They may still seek copyright permissions, for instance, to maintain relationships, to reward someone deemed deserving, or to obtain access to material needed for their purposes. But, in certain other cases, including those described in the Code, they may choose instead to employ fair use of copyrighted material in order to accomplish their professional goals.

Many members of the visual arts community employ fair use in their professional practices and many do so regularly. For instance, scholars and their editors employ fair use in the context of analytic writing (for example, in using reproductions of copyrighted artworks and quotations). Teachers rely on it—along with other copyright exceptions—to show images of works being discussed during class sessions, and, even more heavily, to provide relevant images for student use outside class. In the museum context, fair use may be employed in exhibitions and publications, and in a range of digital and educational projects. Artists may employ fair use to build on preexisting works, engage with contemporary culture, or provide artistic, political, or social commentary. And the entire visual arts community benefits from fair use when it enables enhanced access to archival materials. These are only some of the most common ways in which fair use is central to visual arts practice.

. . . .

Analytic Writing

Analytic writing focuses attention on artists, artworks, and movements; it includes analyses of art within larger cultural, political, and theoretical contexts. Such writing routinely includes reproductions, in full or in part, of relevant artworks in all media, texts, historical images, digital phenomena, and other visual culture. This material—much of it copyrighted—may be drawn from a variety of sources, including the collections of libraries and archives  (generally referred to here as “memory institutions”), notes and photographs taken by the writer, and documentary reproductions created or published by others; some works start out in analog formats and others are born digital. Sometimes the visual or textual works reproduced in connection with analytic writing are the specific subjects of analysis. Sometimes they are used to illustrate larger points about artistic trends and tendencies, or to document a particular point or conclusion. Such writing is published both within traditional academic venues and in ever-expanding venues beyond them. It may be published in a variety of formats, including print and electronic books and journals, exhibition catalogues, collection catalogues, blog and social media posts, and contributions to collaborative digital projects, such as wikis (which projects often reside in institutional repositories), or it may be delivered at academic meetings or on similar occasions. The effectiveness of analytic writing about art is improved by the reproduction of the materials that it references. In many instances, particularly for works of visual art, writers may conclude that reproduction of an entire work may be the most appropriate way to make their points.

PRINCIPLE: In their analytic writing about art, scholars and other writers (and, by extension, their publishers) may invoke fair use to quote, excerpt, or reproduce copyrighted works, subject to certain limitations:

LIMITATIONS

  • The writer’s use of the work, whether in part or in whole, should be justified by the analytic objective, and the user should be prepared to articulate that justification.
  • The writer’s analytic objective should predominate over that of merely representing the work or works used.
  • The amount and kind of material used and (where images are concerned) the size and resolution of the published reproduction should not exceed that appropriate to the analytic objective.
  • Justifications for use and the amount used should be considered especially carefully in connection with digital-format reproductions of born-digital works, where there is a heightened risk that reproductions may function as substitutes for the originals.
  • Reproductions of works should represent the original works as accurately as can be achieved under the circumstances.
  • The writing should provide attribution of the original work as is customary in the field, to the extent possible.

Link to the rest at Fair Use for the Visual Arts

Copyright/Intellectual Property

30 Comments to “Did PETA Name the Right Macaque in Its ‘Monkey Selfie’ Lawsuit?”

  1. When we asked PETA’s general counsel, Jeffrey Kerr, whether Naruto knew about the lawsuit, he responded, “Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly.”

    It’s not the question here that’s silly, it’s PE…oh, never mind.

    Dan

  2. If he/she was given a banana for hitting the shutter release — and could that then count as work for hire? As in he/she was ‘paid’ to ‘make’ the art, so any copyright lies with the payer.

    If PETA ‘wins’, I think they should be paid only in bananas …

  3. So, the next time I tell our Director of Photography that I could teach a monkey to do this, I now have visual evidence. Thanks, PG!

  4. For me the whole argument became null and void right here:

    [Note: Federal Rule of Civil Procedure 17(c)(2) says:

    A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem.]

    Narouto does not meet the legal definition of a person.

    • I think that’s part of the point, trying to get a court to confer some kind of personhood on the monkey by having him found to be legally able to hold a copyright. It won’t work, but you can at least sort of see the wheels turning.

      It kind of reminds me of a story where a team of astronauts was captured by a team of alien astronauts, and had to work out some way to convey to the aliens that they were intelligent creatures. It turned out that they did so by putting another creature in a cage, because the aliens believed that only intelligent creatures did that.

  5. PETA also has no standing on this issue. They are not related to any of the parties. If this gets into court, I plan to sue PETA on the same grounds for being stinkbuttz.

  6. One thing is certain, and that is that there is some serious monkey business going on here.

    • I didn’t know whether to groan or laugh at this remark, and ended up making a sound that was somewhere in between. It got the attention of the other people in the librarY, anyway.

  7. If millions of monkeys pushed millions of shutters millions of times, eventually they would produce a PETA lawsuit! 🙂

    Oh, wait… stike those “millions.”

  8. What’s the next step–claiming copyright ownership when animals trip a motion sensor camera in the wild? Anyone seen those David Attenborough documentaries featuring cameras disguised as rocks and even dung? (Not making this up–there’s a dung cam). Who owns the copyright on those, the animal that deposited the dung? Oh, wait, it isn’t real dung, just an imitation. Except for the dung being slung in this ridiculous lawsuit.

    Arggh!

  9. Gotta say… it’s a great photo! 😀

  10. What bothers me most about this case is that Slater doesn’t have a signed model release.

  11. Thanks for posting this. Copyright is so critical to writers and so few pay attention. Thanks for the attention.

  12. I’m glad I didn’t divulge that a chimp, who will remain nameless, wrote all my books. I’d loose my copyrights. I hope the chimp won’t talk to PETA, for Pete’s sake.

  13. Went straight to the comments. Was not disappointed. Applause all around!

  14. Good grief. The only reason PETA pulls this ridiculous crap is because they’re career environmentalists who need to justify their existence.

    And people say that writing isn’t a “real job”…

  15. In the history of dumb lawsuits, this has to be among the dumbest. If a judge decides that an animal can own copyright on an image it has taken, then surely that would open the gates to animals being able to own all other aspects of copyright, even personality rights. PETA may end up having to get approval from every animal they’ve ever used in a campaign picture.

    • “Hey, that’s my dog’s pawprint on that contract. And since he’s not 18 (dog years don’t count) and I’m his legal guardian, cough up the money to MEEEEEEE!” 🙂

  16. How would an ape register approval for PETA’s use of their photo? Smashing a fig on the release?

    Or…

    No, Kinnard. Don’t go there. Just don’t.

  17. For what it’s worth, I’m given to understand that while you can’t quote a “limited amount” of a photo, thumbnailing it is generally considered to serve the same sort of purpose for fair use. That’s how Google Image Search was found to be fair use when Perfect 10 sued it.

    • That’s correct, Chris.

      The CMSI guidelines mention reducing the pixel count in a photo. For commercial purposes, a hi-resolution photo is almost certainly a necessity.

      FWIW, I reduced the pixel count on Naruto’s photo before posting it here.

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