A cynic in my house once described a selfie as a portrait of a monkey taken by a jackass.  For those of you doing more productive things, like rearranging your sock drawer, you might have missed the case of the monkey selfie.  That case settled last fall but, on April 23, 2018, the U. S. Court of Appeals for the Ninth Circuit, nevertheless issued a decision in an appeal of the matter.  Naruto v Slater, 2018 WL 1902414 (9th Cir. 2018).   The monkey made out handsomely in the settlement, but did not fare well before the courts.  A brief recap is in order:

The monkey selfie case involved captivating photographs of monkeys taken by, well, a monkey.  British nature photographer, David Slater, in 2011, traveled to Sulawesi, Indonesia to photograph the endangered Celebes crested macaque (for purposes of his article, pronounced mon’· kee).  This was Slater’s fourth year traveling to photograph these monkeys and, on this trip, followed a group of monkeys for three days, “befriending” them by day two, reportedly becoming an accepted as a member of their troop.  Slater claims the monkeys were fascinated with his photographic equipment, playing with it and sometimes trying to run off with the camera.  (No word on whether there are monkey pawn shops in the middle of the Indonesian rain forest.)  The monkeys’ friendship apparently had its limits, Slater finding it challenging to get facial close-ups of his hairy brethren.  Appealing to their monkey vanity, Slater attached a wide angle lens to his camera, affixed it to a tripod, adjusted the settings so they would be optimized for close-ups and left the camera’s remote shutter trigger strategically nearby.  As Slater steadied the tripod, the monkeys approached, fascinated with the camera and gear, ogling the lens, while playing with the remote trigger and snapping many shots.  The photo session ended with a dominant male monkey bounding off Slater’s back, but not before creating a new category of selfie: a photo of a monkey taken by a monkey. 

Charmed by his story, the British press pounced, publishing several of the monkey selfies Slater licensed to the media with a press release containing quotes about his experience in capturing these photos.  The press embellished the tale, reporting about the monkeys’ supposed fascination with their reflection in the lens (apparently these were monkeys who had never seen water) and invented a yarn of a monkey stealing Slater’s camera and snapping selfies with reckless abandon direct from the camera.  More importantly, publishing copies of the monkey selfies in newspapers now gave the public access to them.  That was when trouble began.

An ever-alert enterprising member of the public posted a copy of one of the monkey selfies on Wikipedia, prompting Slater to demand Wikipedia remove the photo because it had no license.  Wikipedia, however, declined, claiming that the selfies were created by monkeys, everyone knows (one would think) that monkeys cannot create a copyrighted work, so the selfies, perforce, were in the public domain.  An internet technology blog, “Techdirt,” picked up the story and also posted a copy of one of the monkey selfies, claiming, as Wikipedia did, that the selfies were in the public domain.  In support of its position, Techdirt ran an article entitled Can We Subpoena the Monkey? Why the Monkey Self-Portraits Are Likely in the Public Domain.  See Techdirt, (July 13, 2011). Further, as a result of the international attention and legal commentary the monkey selfies garnered, the U.S. Copyright Office in 2014, compelled to respond, updated its rules to clarify that a work of authorship produced by an animal does not qualify for copyright protection. U.S. Copyright Office, Compendium of US Copyright Office Practices, §313.1 (2014).

In 2015, Slater published a book, Wildlife Personalities, comprising his simian oeuvre, including the infamous monkey selfies.  Naruto the Monkey, (apparently he has a name), a six year old macaque (do monkeys ever lie about their age?), was credited as being the mischievous monkey who snagged the remote to the camera, snapping the selfies.  One photo, a self-portrait, more perfect than all others, encapsulating the lightness of the moment and giving Naruto a wistful human essence, became the most reproduced and widely distributed of Slater’s simian selfies.  All this, apparently, was more than certain enterprising members of the public could bear, so, as a next of friend to Naruto the Monkey, People for the Ethical Treatment of Animals (“PETA”), commenced an action against Slater and his publisher, claiming Naruto was the copyright owner of the simian selfies and, hence, that Slater and his publisher had infringed Naruto’s copyrights.

In 2016, the lower court, in an opinion by U. S. District Court Judge William Horsley Orrick, dashed Naruto’s hopes of artistic recognition, dismissing the case and holding that the Copyright Act does not confer standing upon animals, but not before acknowledging that Naruto was “highly intelligent” possessing “grasping hands and opposable thumbs with the ability to move his fingers independently.”  Judge Orrick accepted as true that Naruto had spent years around and was comfortable with tourists and photographers and that Naruto “purposefully” pushed the shutter release button and understood “the cause and effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.”  (Which, of course, is more than can be said about the authors of many human selfies.)  But, alas, that was not enough, nor was it the only cause and effect in issue.  As fate would have it, the court relied on The Human Authorship Requirement, a then-recent amendment to the Compendium of the U. S. Copyright Office Practices, which amendment, as noted above, was prompted by Wikipedia’s and Techdirt’s legal arguments about the very same monkey selfies in issue in this case. So, fundamentally, Naruto’s selfies caused the Copyright Office to issue a clarification regarding non-human copyright claimants, which caused Naruto to lose his action for copyright infringement.  Naruto, thus, was the author of his own demise.  Now that’s cause and effect.

Deterred but not broken, Naruto, appealed, which brings us to present day.  PETA and Slater settled the case last fall, Slater agreeing to pay 25 percent of his future royalties from the monkey selfies to organizations dedicated to habitat protection in Sulawesi, Indonesia.  Count that as a win for the monkey.  The U. S. Court of Appeal for the Ninth Circuit, though, recognizing the compelling need to address whether a monkey could be recognized as copyright holder, presumably, to stanch the all-too-certain flood of monkey copyright litigation that would paralyze in its circuit, elected to rule on PETA’s appeal, despite the parties’ settlement of the claims.

The Ninth Circuit held that PETA lacked standing as a next of friend of Naruto, but nevertheless determined that the monkey—in his own right—had constitutional standing to seek redress of his claim.  The court relied on an earlier Ninth Circuit decision granting standing to a group of plaintiffs comprising whales, dolphins and porpoises, standing being an odd term to describe creatures having fins and tails, but no feet.  But, in opening one door the court quickly closed another.  Finding that the “Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute” the court found that Naruto the Monkey, instead, lacked standing to proceed with his suit under copyright law.  Clearly a case of simian discrimination and, quite likely, a premise for a new Planet of the Apes movie.

In driving home the point that copyrights require independent creation, but not singular originality, law professors oft say that if you gave a million monkeys each a typewriter and one of them randomly produced Hamlet it would not infringe on the rights of the original work because there was no copying.  But in the post-Naruto world, the question is who would own the copyright in the monkey’s work?  Dogged posthumously by rumors that his works secretly were authored by Elizabethan poet and playwright, Christopher Marlowe, it is a fair bet Shakespeare would be thankful not to be living in a digital age, combatting similar accusations about monkeys.  But think how the monkeys must feel.

Mark Costello is a partner at Boylan Code LLP, a three-time Daytime Emmy Award nominee (2014, 2017 and 2018) and an inept selfie-taker. 

To read the published article in the Daily Record, click here.