A while back I drew attention to a rather excellent piece by Technollama entitled “Do Monkeys Dream of Electric Copyright?“, which, right when the saga of Naruto the aspiring simian photographer was just kicking off, analysed the various issues the human photographer, David Slater, would have when trying to claim copyright from a selfie which Naruto the crested black macaque monkey took with his camera back in 2011. The piece made some interesting analogies between Infopaq and computer-generated work, and how Slater could still perhaps claim copyright, despite the intervention of the monkey. Later, in 2015, PETA filed a lawsuit, Naruto v Slater, in the name of the monkey,claiming copyright for Naruto. After much speculation by academics and amused onlookers US District Judge William Orrick ruled this week, on Wednesday 6th January 2016, that the monkey sadly cannot own the intellectual property rights to the photos which were taken. So let us take a quick look back at the saga of Naruto the simian selfie-star, and the most recent developments.
During a shoot in Sulawesi in Indonesia in 2011, David Slater decided to set up his camera on a tripod, and the inquisitive Naruto (though I tried, I could not find out who initially dubbed the monkey ‘Naruto’) triggered a number of selfies whilst playing with the camera and admiring his/her (reports also vary on the protagonists gender) reflection in the lens. As Slater puts it;
I wanted to keep my new found friends happy and with me. I now wanted to get right in their faces with a wide angle lens, but that was proving too difficult as they were nervous of something – I couldn’t tell what. So I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens. Was this what they where afraid of earlier? Perhaps also the sight of the shutter planes moving within the lens also amused or scared them? They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on, but I was being prodded and poked by would be groomers and a few playful juveniles who nibbled at my arms. Eventually the dominant male at times became over excited and eventually gave me a whack with his hand as he bounced off my back. I new then that I had to leave before I possibly got him too upset. The whole experience lasted about 30 minutes.
In September 2015, the plot thickened when PETA launched a headline-grabbing claim on behalf of Naruto, despite numerous indications that they would not ultimately be successful. This development was also covered by Technollama, who resisted the urge to dismiss the arguments outright, but rather went through a number of the more interesting issues, particularly the jurisdictional ones.
So the case may end up resting entirely on a jurisdiction question. PETA has sued in a California court because Slater published a book called Wildlife Personalities using the self-publishing service Blurb, a Delaware company that allegedly ships all of the printed material from a San Francisco warehouse. The plaintiffs claim that this is enough to grant them standing in the US. They do agree that Slater is a UK citizen, and that his company is also based in the UK, but they are using the fact that Blurb is an American company to establish jurisdiction.
However, Blurb has a UK website that accepts payment in GBP, so it is entirely possible that Slater used that service thinking that it was based in the UK. It would seem far-fetched that using a .co.uk site, and paying in British pounds would open one up to US jurisdiction only because the site is run by a US company. PETA has offices in the UK, so they can surely sue in an English court, the reason that they have not done so may tell us quite a lot about what the view as the strength of their case.
Turning back to this week’s developments, this most recent decision by a US federal judge, rather than any sort of landmark ruling in itself, was simply a dismissal of the lawsuit by the judge, as he did not see sufficient room for him to make a decision on that point. According to Ars Technica, Orrick stated, “I’m not the person to weigh into this. This is an issue for Congress and the president,” in his short ruling on the issue. The suggestion was that such an issue should be decided by the legislature. This is in addition to the multiple questions regarding where jurisdiction should in fact lie for a case involving photos taken in Indonesia by a British photographer(‘s camera). As PETA report on the decision;
In a disappointing move on Wednesday, the judge indicated that he is inclined to dismiss the case but will give PETA 20 days to file an amended complaint. The judge has doubts about whether the U.S. Copyright Act provides nonhuman animals with standing to own a copyright. Without that express authorization, he feels that he does not have the power to do so himself.
It seems distinctly possibly that PETA will continue to push for this issue to be addressed – if nothing else it must be wonderful publicity for them. It will be interesting to see if they continue down the US route, or attempt to try their hand in the UK. Either way, the saga of Naruto, the primate photographer, may not quite yet be at an end.
(C) Header image …. ? David Slater/Naruto the Macaque
Jordan Weissmann, “Read This Lawyer’s Delightful Response to PETA’s Absurd Monkey Selfie Lawsuit“, Slate
Andres Guadamuz, “Do Monkeys Dream of Electric Copyright“, Technollama