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Copyright is No Monkey Business

Nearly everyone would agree a photographer deserves the copyright to a picture they take , but issues arise when that “person” is a monkey.

Commissioned by a nature conservationist group, wildlife photographer David Slater traveled to Sulawesi, Indonesia in 2008 to bring recognition to the crested black macaque, a critically endangered species of monkey. Slater failed to get  close-ups of the macaques because they would always hide, so he devised a new plan. Slater set up a tripod and left it for the monkeys to play with. While many pictures were taken, one particular macaque’s “selfies” went viral in 2011.

Photo Courtesy of Balough Law Office

Although the selfies were not what he originally intended for, Slater’s goal of giving the Sulawesi macaques awareness was a massive success. Financially, however, Slater faced trouble when organizations like Wikipedia claimed the photos were public domain because they were not created by a human. Slater argued for his copyright on the basis that his ingenuity led to the selfie.

“It was my artistry and idea to leave them to play with the camera and it was all in my eyesight,” Slater said. “I knew the monkeys were very likely to do this and I predicted it.”

While the two sides fought over the copyright, yet another party joined in. The People for the Ethical Treatment of Animals (PETA), seeking to use this situation to advance animal rights, sued Slater on behalf of the monkey, stating that the photograph was neither Slater’s nor the public’s, but rather the macaque’s. A U.S. District Court ruled that the monkey, who has been named Naruto, can not have a copyright because animals are not explicitly granted these rights under any law. PETA continued to the Circuit Court of Appeals, leading to an agreement on Sept. 11, 2017 that nullified the District Court’s decision. Slater has gained copyright of all the photos in this specific instance, but the question of a non-human entity owning copyright was reopened.

Giving an animal copyright protection seems ridiculous at first, but it is not far from being reality. In Slater’s case, a human contributed greatly to the final picture, but different pieces of art are clearly made by animals. There are already instances when animals have had their paintings sold or received cash for playing music. In these situations, the money goes to the owner or the habitat the animal lives in. Despite this, there has never been a litigation case beside Naruto v. Slater to decide who actually owns the copyright.

The basis for copyright in the U.S. stems from the Constitution, which gives copyrights “To promote the Progress of Science and useful Arts.” As such, one key question is which side would more closely follow the ideals of the Constitution. In the case when the animal has an owner, it seems that the owner could best utilize the copyright. However, if the animal is wild, it would be more logical for the animal to have the copyright instead of the land. Instead of having completely different rules for these circumstances, it might simply be easier to give the animal the copyright in both cases, and the owner would still be able to use that copyright.

Another concern is how well “Science and useful Arts” are promoted by granting copyrights to animals. However, this is already an issue with other copyrights. When copyrights can potentially last over 150 years, it is hard to imagine that a really long copyright is more useful than letting other artists borrow that idea to create more meaningful works. Icons like Mickey Mouse, created in 1928, are still held exclusively by Walt Disney, preventing anyone else from making art with the beloved mouse.

Perhaps the larger issue is not deciding whether dogs, chicken, or goldfish can own copyright when clarifying copyright laws in general would benefit everyone. While copyright is an important issue, the laws need not be excessively complex.

About Johny Tran

Johny Tran
Johny is a person, maybe.

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