The ‘monkey selfie’ has become an internet sensation ever since the pictures of smiling Naruto appeared on the internet nearly five years ago. Five years down the line, the topic remains sensational in the light of the legal battle fought between PETA and David Slater, the British photographer claiming copyright; thereby raising important questions relating to copyright which hold manifold importance in today’s growing digital civilisation.

In 2011, David Slater travelled to Tangkoko Reserve on the Sulawesian island of Indonesia. Having encountered a troop of crested black macaques there, he noticed their extreme fascination towards the camera equipment and proceeded to set up his camera on a self-timer hoping to capture some pictures of the endangered monkey. The monkeys started playing with the camera by pressing its buttons and this eventually ended up in them taking pictures of themselves. Among the hundreds of pictures taken, three stunning images were selected by Slater which showcased a side of the macaque very hard to witness otherwise. However as has been the order of things, even something so profoundly simplistic and least cut-off from the human world became heavily tainted by two conflicting parties engaged in a legal battle to claim copyright over the picture (imagine the macaques in the jungle having no clue the uproar their pictures are creating in the IP world). In 2011, the leading newspaper ‘Daily Mail’ published the pictures of the monkeys when Slater contacted them. One of the selfies eventually became the cover picture of Slater’s book, ‘Wildlife Personalities’ published in 2014 identifying Slater as its copyright owner.

Now what is copyright and what was the dispute about? Basically, copyright is a legal right given to a creator of an original work for a limited period of time. During this time, the creator has the right to gain commercially from the exploitation of that work and also has any other related right required to prevent another party from illegally using that work or infringing upon the rights to that work without the creator’s prior authorisation. A complaint being filed by PETA in the US district court in California (2015) claiming that the monkey Naruto was the owner to the copyright to his picture and not Slater. In effect, PETA was representing the monkey as the plaintiff and was suing the photographer and the publishing company for copyright infringement. In January 2016 Judge William Orrick ruled in favour of the defence stating that a non-human entity cannot own rights to a work under the US Code. In his words, “While Congress and the President can extend protection of law to animals there is no indication that they did so in the Copyright Act.”….. “The Act speaks in broad terms…to allow courts to fill in case-specific decisions like this one.”

Though, PETA as an option to appeal a striking number of observations have been made by an author, Andres Gaudamuz, in a rather interesting read on the analysis of this case.

Firstly, there is the confusion regarding jurisdiction. Slater is a UK citizen, the photograph was taken in Indonesia and the publication of the photograph was in the UK and PETA filed the case in the US following the release of Slater’s book ‘Wildlife Personalities’ which was published through ‘Blurb’, a company based in Delaware. According to the author, either way, US Copyright law need not have been applied in this instance. Firstly, under the Berne Convention the place of origination of the work is identified as the place of publication and gives the creator the right to claim his rights over that jurisdiction. Therefore Slater was right in his persistent claims to exercise his rights in the UK. Secondly, the publishing company ‘Blurb’ has a uk website also ( Slater may have used this means thinking that the company was based in UK) and the basic understanding is that even if a company runs an on-site establishment in a particular country (in this case US) but participates in dealings which take place in the national currency of the other party or which involves shipping to another jurisdiction or the purchase of a country-code level top domain, jurisdiction can be transferred to that country.

The second issue for determination is the threshold for originality. Does the photograph of the macaque reflect originality? Though the following issue is not directly concerned with the case, it is an interesting viewpoint to share. In 2014 when Wikipedia posted the picture of the monkey it categorically stated in its transparency report that the picture is in the public domain. Works enter the public domain when they do not fulfil the criteria of attracting copyright protection such as originality and creativity of the authors or because the time-period of the protection has lapsed. A work reflects originality if it is an independent creation of the author and embodies intellectual labour and skill of the author involved in production of the work. In simple words, originality means that no same/similar work has been produced by any other person anywhere in the world.

The concept of originality has seen a gradual transition from traditional times when the author would do most or all of the work until today when technology has taken over and does most of the work with least human supervision. Just because the camera was put on a self-timer and the macaques clicked pictures of themselves by pressing a few buttons, can Slater’s contribution be regarded as nil in the final production of the work? The case of Painer vs Standard VerlagsGmbH was cited wherein it was stated that “the author was able to express his creative abilities in the production of the work by making free and creative choices”….“In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software.”

The UK perspective harmonises along the above lines in the case of Temple Island Collections vs New English Teas where the judge had to determine whether the picture had copyright, and he concluded that in photography the composition is important which comprises factors like the angle of shot, the field of view, and the merging of different elements appropriately. If the above criteria are fulfilled it is enough to prove the existence of “skill and labour/intellectual creation”, in the work and therefore the author should have copyright over it. To add to this further, what is also an important consideration is the selection process involved in choosing the three photographs among the hundreds that the camera captured. Such a selection process often reflects the expression of the author’s creativity in achieving the desired result. Therefore to conclude, Slater may be regarded as the author of the monkey selfie in lieu of all the detailed technicalities involved.

On the other hand, the macaque’s cause has been furthered by Agustin Fuentes, Chairman of the Anthropology Department at the University of Notre Dame in stating that non-human primate behaviour such as these of the “…macaques manipulate objects for a desired effect, therefore it would be well within the capacity of Naruto’s abilities to manipulate the camera in such a way that he ended up taking a photo of himself,”.

It will be interesting to see which side the bench agrees with because as of August 2016, this monkey-selfie business has been given fresh life when PETA filed an Appeal in the Ninth Circuit. If the Court decides to grant Naruto a right over the work, this will be the first time a non-human entity is given that status under the US Copyright law. Slater if willing to can also file a case in the UK in view of some of the observations summarised earlier.

By: Shreya Talukdar

References

https://policyreview.info/articles/analysis/monkey-selfie-copyright-lessons-originality-photographs-and-internet-jurisdiction (Please refer to this article for case citations)

http://www.peta.org/blog/monkey-selfie-case-headed-u-s-court-appeals/

https://www.theguardian.com/world/2016/jan/06/monkey-selfie-case-animal-photo-copyright

https://consumerist.com/2016/08/08/the-monkey-selfie-case-gets-new-life-in-federal-appeals-court/

http://www.npr.org/sections/thetwo-way/2016/01/07/462245189/federal-judge-says-monkey-cant-own-copyright-to-his-selfie

Author Note

Another point to further Slater’s case is the selection process involved in choosing the three photographs among the hundreds which the macaques took, which could indicate the presence of originality in the author’s work. The Court (CJEU) talked about the word ‘selection’ in the case of Infopaq vs Danske Dagblades stating that: “Regarding the elements of such works covered by the protection, it should be observed that they consist of words which, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation.”