Monkey Business: PETA Sues On Behalf Of The Monkey Selfie; Claims Copyright Belongs To The Monkey
from the this-case-is-bananas dept
Remember the monkey selfie? That is the photo that was taken by a macaque monkey in Indonesia, using a camera left on the ground by photographer David Slater. It first became a story back in 2011 when the photographs of the monkey became a bit of an amusing filler piece for some newspapers.The story seemed to die down for a while, but became a thing again last year when Wikipedia also refused to take down the public domain image. As we noted, the whole fight highlighted how ridiculous the belief is that everything must be owned. Even more ridiculous was that David Slater then threatened the public interest group Public Knowledge over the monkey selfie... and then we received a totally laughable cease & desist based on a questionable scheme claiming some sort of "personality rights" for the monkey under the laws of Guernsey (don't ask).
While all of this was going on, Sarah Jeong wrote a pretty funny satire piece about why the monkey should get the copyright... but it appears that the publicity hounds at PETA (People for the Ethical Treatment of Animals), who are known for their ridiculous publicity stunts, decided that this was a cause worth taking up and have now filed a lawsuit on behalf of the monkey against the photographer David Slater. Think of it as abusing the legal system for publicity.
Okay, while we've gone over the legal arguments in great detail in the past, let's do a quick recap. There are three general arguments about the copyright in the photo: (1) Slater has the copyright (2) the monkey has the copyright or (3) no one has the copyright and the image is in the public domain. (1) is clearly not true. In order to get the copyright you need to take the picture or have the copyright assigned to you, which would require the photographer to go through the process of assigning the copyright to you. Slater said from the beginning that he left the cameras on the ground and the curious monkeys took the photograph, so by his own words, he made it clear that he was not the photographer and does not get the copyright. On (2), copyright law is pretty clear that only humans can get copyrights, and thus the monkey cannot have the copyright, nor can it assign the copyright to a human, because it never had it in the first place. So the remaining option is (3) the image is in the public domain.
In fact, last year the Copyright Office itself weighed in on this with its Compendium of US Copyright Office Practices, which pretty clearly states no copyright on monkey selfies:
Naruto has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner. While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. Naruto should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his behalf by the Next Friends.The lawsuit then requests that the court not only give the (non-existent) copyright to the monkey, but then allow PETA to administer the copyright on the monkey's behalf. The lawsuit doesn't even attempt to get around the whole "not by a person" thing other than to claim that these monkeys are really special. They may be, but it doesn't change the law.
Also, it barely seems worth mentioning, but PETA seems to also ignore that the statute of limitations on copyright law is... three years. And the photograph was taken over four years ago. As Matt Schruers notes, it appears that the plaintiff, Naruto, was, well, "monkeying around" all this time, rather than filing a lawsuit in the allowed time period. Amazingly, PETA got a decently large and well known law firm, Irell & Manella, which handles lots of copyright cases, to file this joke of a lawsuit.
This case can and should be tossed out for a whole variety of reasons from standing to statute of limitations to simple basic copyright law. But, again, if it's all just yet another publicity stunt by PETA, it's not clear that they care. But, using the judicial system for publicity stunts is generally frowned upon. Whether or not this monkey business is sanctionable is something that a judge may have to explore eventually.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, david slater, monkey selfie, monkeys, public domain
Companies: irell & manella, peta
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in thread ]
[ link to this | view in thread ]
Well, yes, you already said "PETA", so abusive publicity stunts can be assumed up-front.
But as PETA stunts go, this is a pretty mild one. At least they're not supporting terrorists or encouraging high school kids to drink beer this time...
[ link to this | view in thread ]
Go figure...
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
I hope this rock
[ link to this | view in thread ]
C&D on PETA's use of our Galactic TM on PETA.
Failure to comply with this GC&D could result in early destruction of the planet hosting the non-compliant group via the delivery of the Illudiam Q36 Explosive Space Modulator.
We eagerly await terrestrial termination of the use of our PETA trademark within the next 30 days, or we will have no choice but to destroy your planet. Q36ing from orbit as it's the only way we can be sure to protect our IP rights.
Thanks,
Marvin, lead counsel to People Eating Tasty Animals
[ link to this | view in thread ]
Anit-SLAPP anyone?
Unfortunately, with the way many people treat animals as well or better than people, they might actually win this case.
[ link to this | view in thread ]
Re:
PS. for folks that doesn't know what the name Naruto is, https://en.wikipedia.org/wiki/Naruto
[ link to this | view in thread ]
"another"?
Everything that PETA does is a publicity stunt. There is no need to question if this is yet another publicity stunt.
[ link to this | view in thread ]
works 99% of the time... and this one is no exception... sigh.
[ link to this | view in thread ]
Re:
e.g. in college I interviewed a PETA lobbyist who spent all his time just pursuing one simple, direct and sensible goal: he worked to bring new non-animal endocrinology tests that had been approved and adopted in Europe to the US and Canada, by encouraging the EPA and other agencies to usher them quickly through the regulatory approval process. Switching to the non-animal tests had basically no downsides and would result in thousands of fewer animals being experimented on, and all it needed was some regulatory attention.
Stuff like that seems entirely reasonable and even admirable to me, and I really wish PETA would focus entirely on that kind of thing and not on their ridiculous antics. But it is important to remember that there is some real work happening behind the publicity stunts.
[ link to this | view in thread ]
FRCP Rule 11
[ link to this | view in thread ]
Court
[ link to this | view in thread ]
Monkey and Copyright
[ link to this | view in thread ]
Re:
O RLY?
[ link to this | view in thread ]
United States District Court
Northern District of California
From:
Naruto
North Sulawesi, Indonesia
To whom it may concern:
As the holder of copyright on the image in dispute in this case, I can tell you this:
1) PETA ain't my friends, they're just in it for the attention.
2) I made the picture, it's mine, not Slater's. Slater admitted I took it. (And since you are reading my note, I'm obviously as much a person as you are...)
3) I donated the copyright to the park to help in my upkeep. I'm too busy to keep track of all that anyway.
Don't make me come into court and throw poo.
Respectfully,
Naruto
[ link to this | view in thread ]
Re: Re:
Animal rights activists are right up there with the pro-lifers.
[ link to this | view in thread ]
Re: Monkey and Copyright
Slater lost his camera to a monkey, and the monkey figured out that buttons could be pushed.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
PETA's goal is animal rights, not copyright maximalism
PETA is a strange animal, if you'll excuse the language. Unlike, say, ASPCA, they are not really concerned about the welfare of animals; rather, they are concerned about whether animals should have legal rights.
I doubt PETA understands what copyright even is... They just want a monkey to "own" "intellectual property."
[ link to this | view in thread ]
You are all missing the MOST IMPORTANT thing of all!
THINK OF THE CHILDREN, HUMAN AND OTHERWISE!
[ link to this | view in thread ]
Next Up
[ link to this | view in thread ]
Re: Re: Monkey and Copyright
Now, switching to 'just trolling mode' . . .
I have this device that, when a button is pushed, it takes a picture. I left the device on the ground anticipating the possibility that something might come along, pick up the camera and push the button.
Since I set up my apparatus to take pictures, do I own the copyright when a monkey takes the picture?
If I own the pictures when I set up a tripod camera to auto-shoot pictures when something moves in the frame, they why wouldn't I own the copyright in this hypothetical when I left my camera so that it could take a picture if something picked it up and pushed the button?
[ link to this | view in thread ]
Re: PETA's goal is animal rights, not copyright maximalism
Isn't PETA about People Eating Tasty Animals?
[ link to this | view in thread ]
Re: PETA's goal is animal rights, not copyright maximalism
Kind of a worthy purpose—showing everyone that the rules don't really mean what they say.
[ link to this | view in thread ]
Re: Next Up
[ link to this | view in thread ]
An amusing argument Slater could use
One such argument is that Slater did not infringe the monkey's copyright because . . . ta da . . . just as TechDirt and others have pointed out, the picture is in the public domain.
I would find this counter argument amusing, ironic simply because it is the opposite of what Slater argued when he wanted to own the copyright in order to profit from it. Now it is more expedient to argue the image is in the public domain, hence no infringement.
[ link to this | view in thread ]
Re: Re:
As to this story, I think there are some interesting questions on what kind of rights sufficiently intelligent non-humans should have that we'll need to address in the future. We already accept that children and those with certain mental handicaps have some rights, but not others. Whether the first time we have to confront it is some kind of AI, or a genetically enhanced smart animal, or something we can't even foresee, the day is eventually coming.
[ link to this | view in thread ]
Re: Re: PETA's goal is animal rights, not copyright maximalism
[ link to this | view in thread ]
Re: Re: Re:
Perhaps you envision a more sci-fi role for the berobed judiciary: A role where the separation of powers doctrine has lost all potency.
[ link to this | view in thread ]
Re: Monkey and Copyright
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Monkey and Copyright
Although if you have a link handy to the previous Techdirt discussions, it might save someone from having to Google 'em up. Otoh, if not, then not.
[ link to this | view in thread ]
Re: You are all missing the MOST IMPORTANT thing of all!
THIS is pure genus.
[ link to this | view in thread ]
Re: Re: Re: Monkey and Copyright
Without even checking I can almost guarantee that almost every blue word in the article links to the stories you are looking for.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Monkey and Copyright
What about the pro-IP shills around here. They're about as intelligent as a monkey. Actually that's an insult to monkeys. Do they, based on their intelligence and lack of mental capabilities, have agency?
[ link to this | view in thread ]
Copyrights exist as a way of rewarding creators and encouraging them to produce more works. If the monkey gets this copyright, will it be inspired to take more photos?
Will other monkeys be inspired to take of photography or another art form?
No? Then there's no point in upsetting existing law.
[ link to this | view in thread ]
Re: Monkey and Copyright
[ link to this | view in thread ]
Bright side: expiration of the copyright
[ link to this | view in thread ]
Default [was Re: Bright side: expiration of the copyright]
But suppose that defendants read the complaint, and decide that it is so manifestly ridiculous and absurd that it requires no answer nor even any appearance. If defendants default, what do you suppose a federal court will do?
[ link to this | view in thread ]
Masnick needs his facts right
[ link to this | view in thread ]
Re: Bright side: expiration of the copyright
Your understanding couldn't be any further from correct, in fact you've got it ass-backwards.
[ link to this | view in thread ]
Re: Re: Bright side: expiration of the copyright
[ link to this | view in thread ]
Re: Masnick needs his facts right
In the original story about this, Slater clearly said the monkeys KNOCKED THE CAMERA and then played with it. In other words it wasn't his composition in any way. If he's changing his story later, then he lied up front.
http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borro ws-photographers-camera.html
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
When Josh wrote, “As to this story, I think…”, he was, most presumably, writing in the context of this story here—and its latest development as chronicled in the article above.
[ link to this | view in thread ]
Re: Re: Re:
But, in theory, at least, even in federal court, an attorney mustalso abide by California Rules of Professional Conduct Rule 3-200(B), “Prohibited Objectives of Employment” Is it at all likely that the California state bar actually enforces this rule? For abusive complaints filed in federal district court? Or is it really that this rule is just another toothless laughingstock. Promulgated for show, ignored in practice.
[ link to this | view in thread ]
Re: Re: Re: An Anti-Life Supporter are you?
[ link to this | view in thread ]
Re: Re: Re: Re: Monkey and Copyright
- TechDescartes
[ link to this | view in thread ]
Re: Re: Masnick needs his facts right
Here's one you did miss, however:
Yes, the picture(s) were taken in 2011. But they are suing for a book published in 2014. (See paragraph 4 of the complaint.) Therefore, no expiration of the statute of limitations.
[ link to this | view in thread ]
if just for a moment, the possibility of defining an animal as a
"person" under the law; much like a corporation, which is also
not human.
Even when they lose they might use such an error as a wedge
to pry open "animal rights" for future cases and wedges.
[ link to this | view in thread ]
Authors and owners [was Re: ]
Curiously enough, in at least one critical place where the Copyright Act does talk about a “person” it qualifies that term as “natural person”. From the definitions in 17 U.S.C. § 101:
[ link to this | view in thread ]
Re: Re:
Similar to the police, if the only ones that make the news are the minority on the extreme edges, and the sane majority stays silent, then it doesn't matter if the sane/good are technically in the majority, all of them are going to be seen as represented by the worst among them, because those are the only ones getting attention.
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Authors and owners [was Re: ]
…hence the sideways approach to legal "personhood"… ;]
[ link to this | view in thread ]
Re: Re: Masnick needs his facts right
[ link to this | view in thread ]
http://www.theguardian.com/world/2015/sep/22/monkey-selfies-copyright-lawsuit-peta
[ link to this | view in thread ]
Proxies are illegal because copyright.
What PETA is doing is illegal.
[ link to this | view in thread ]
Re: Re: Re: Masnick needs his facts right
Does that mean that if I set my camera to Auto, the camera gets copyright?
[ link to this | view in thread ]
Re: Re: Re: Monkey and Copyright
[ link to this | view in thread ]
Re:
I doubt it.
[ link to this | view in thread ]
I'm not a lawyer, but I watch TV
1) How can PETA sue on behalf of a monkey over a copyright issue? I can understand suing on behalf of an animal over mistreatment, but not giving a monkey proper copyright isn't abusing an animal.
2) How can they file a lawsuit in a California court when the photo shoot took place in Indonesia? How does the US or California have jurisdiction?
Also, if they're suing on behalf of a monkey in Indonesia, how do Indonesia's copyright laws come into it?
3) And even if they win (which is a stretch) how exactly will the winnings help the monkey? Like the other poster said, will PETA go to Indonesia and help fund the monkey's park?
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re: Masnick needs his facts right
Do you have any sources?
"the knocked camera refers to when a monkey stole a camera and pressed the button but no shots were good enough to keep."
That's not how I read it on the site that Mike links to.
[ link to this | view in thread ]
Re: Re: Re: Masnick needs his facts right
[ link to this | view in thread ]
Re: I'm not a lawyer, but I watch TV
I think they're relying on this, from the Federal Rules of Civil Procedure:
"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."
(The problem for them is that a monkey is not a "person", incompetent or otherwise, and this is why the case deserves sanctions.)
Because the guy published a book in the US. They have jurisdiction.
Anyone using a work in the US can rely on US copyright law. (If this wasn't the case, you'd see movies being shot and books being published whereever the strongest copyright laws were, and then imported.)
According to the lawsuit, if they win, they want the court to order that:
"... all net proceeds from the sale, licensing and other commercial use of the Monkey Selfies, including Defendants’ disgorged profits, less necessary and appropriate expenses, be used solely for the benefit of Naruto, his community of crested macaques, and preservation of their habitat;"
[ link to this | view in thread ]
Re: Re: I'm not a lawyer, but I watch TV
This may be a mere scribner's errror, but I'd be hesitant to presume that the plaintiff is relying on (c)(2) when they say (b). Obviously, (b) is not (c).
[ link to this | view in thread ]
Re: Re: Re: Re: Monkey and Copyright
Rather, 17 U.S.C. § 702 provides:
What was highlighted in the article above was not “legislated”.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: I'm not a lawyer, but I watch TV
Also note 17 U.S.C. § 104(b)(2), covering the situation when first publication occurs in a foreign nation which is a treaty party.
[ link to this | view in thread ]
Re: Re: Re:
Or perhaps instead, the sane members of the public should conclude that the crazy California bar is incapable of regulating itself.
[ link to this | view in thread ]
Parallel discussions
(”Most self-referential website on the planet”, yeah ;-)
[ link to this | view in thread ]