Primatologist Tells Court That Macaque Monkeys Are, Like, Super Smart, So They Should Totally Get Copyrights

from the oh-really-now? dept

The case of the monkey selfie keeps getting weirder and weirder. I'm not going to rehash the whole damn story again -- just click the monkey selfie link above and scroll through the posts. Here's the super short version though: A British photographer named David Slater left his camera on the ground in an Indonesian jungle, where a macaque monkey (which we're now, much later, told is named Naruto, though there's some dispute over this) approached the camera and took a selfie. There were all sorts of debates online about whether or not there was any copyright in the photo and, if so, who owned it, with Slater repeatedly insisting that he did (and occasionally having representatives threaten us). A few years later, out of the blue came PETA, claiming that it represented the monkey (Naruto) and was suing Slater for copyright infringement for publishing a book with the photos. A judge, rightly, tossed out the lawsuit, pointing out (as we had argued from the very beginning) that a monkey has no right to a copyright, and the law only applies to human persons. PETA and its actually well-known and until now mostly respected law firm, Irell & Manella, have appealed the ruling.

And, now, believe it or not, PETA has gotten a primatologist and apparent "macaque expert" named Agustin Fuentes to file an amicus brief supporting the idea that a macaque monkey taking a selfie should hold the copyright in the image. Fuentes may be a macaque expert, but he's not much of a copyright expert... and it shows. The brief mainly focuses on how smart macaque monkeys are, as evidence that being smart somehow means it deserves the copyright.

Naruto, like other macaques, had likely made the connection between manipulation of the camera as an item and the sound of the shutter and the changing image in the lens as the shutter clicked. This may have been interesting for Naruto as he was noted as performing this behavior many times. It is likely that he had seen the human manipulation of the camera and heard the sounds it made and, as is common for macaques, became curious to investigate it on his own. This in no way assumes Naruto had any cognizance of the concept of a photograph but rather that the actions and noises made by the camera were enticing and that through explorative manipulation Naruto was able to cause the camera to make such sounds/actions. Naruto intentionally engaged in interactions with the camera.

That's all nice and stuff, but is has fuck all to do with the question of copyright. The purpose of copyright is to provide the incentives to create works so that the public can enjoy them. It's the intent of copyright to create a limited monopoly such that the author of the work can use that artificial monopoly to earn money for some period of time, and those profits help incentivize the creation.

Yet here, Fuentes basically admits that it's not the copyright that's the incentive here, but the neat clicking sound and what happens when the shutter is pressed.

Particularly relevant for this case, macaques can frequently understand basic correlations between acts of object manipulation and specific results. There is no question that macaques manipulate material objects with an expectation of specific outcomes. They understand, for example, that by hitting snail shells with rocks, they can crack open and retrieve the snail. Naruto’s behavior in creating the photographs in dispute is consistent with a macaque’s interest in and capacity for sophisticated object manipulation. Naruto certainly understood that he was intentionally engaged in actions with an object that was stimulating. He could recognize the association between his actions and the shutter movement and sound. These photographs are not the result of an accident; they result from specific and intentional manipulation of the camera by Naruto.

Again, even if true, that means absolutely nothing for the copyright question. The laws apply to people, not to animals, unless expressly written that way. That's a basic tenet of the law. The only weak attempt to tie this back to the copyright question is basically Fuentes and his lawyer arguing that "the law changes based on new data."

Some of the Supreme Court’s most significant modern decisions have hinged, at least in part, on attempts to understand emerging science and empirical data.

This is also true... but irrelevant. It absolutely does not matter. And, on top of that, he's introducing no new "science" here other than "macaque monkeys are smart." So what? That has no bearing on whether or not a monkey gets a copyright -- to which the answer is as pretty definitive: Hell no.

Filed Under: agustin fuentes, copyright, david slater, monkey selfie, naruto, primatologist, public domain
Companies: peta