PETA sued a photographer over a photograph taken on his camera by a monkey named Naruto. PETA claims that rather than the photographer, it is the monkey who is entitled to the copyright in the photo.
According to the man who owned the camera, David Slater, the monkey did little more than push a button on the camera. Mr. Slater was the one who positioned the camera on a tripod and allowed the monkeys to push the button on the camera. Mr. Slater has also obtained copyright over the photographs in England under the name of his company, Wildlife Personalities Ltd. A key issue in the lawsuit is whether Mr. Slater’s creative contribution to the photos is sufficient to obtain copyright protection.
According to the Copyright Office a animal is not entitled to a copyright, only a human. In its recent Motion to Dismiss the lawsuit, the attorneys for Slater focus not on the issue of copyright or whether the photo is in the public domain but focus instead on the contention that a monkey has no standing to sue. According to Slater’s lawyers:
“A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the setup for a punchline is really happening. It should not be happening. Under Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), dismissal of this action is required for lack of standing and failure to state a claim upon which relief can be granted. Monkey see, monkey sue is not good law – at least not in the Ninth Circuit.”
The attorneys go on to state:
“[I]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.” Cetacean Community, 386 F.3d at 1179 (quoting Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F. Supp. 45, 49 (D. Mass. 1993)). In Cetacean Community, the Ninth Circuit rejected the notion that non-human animals could have standing under four Acts of Congress, including two that Congress enacted for the protection of animals: the Endangered Species Act and the Marine Mammal Protection Act. 386 F.3d at 1177-78. The standing inquiry for animals under Cetacean Community is very simple: unless Congress has plainly stated that animals have standing to sue, the federal courts will not read any legislation to confer statutory standing to animals. Id. at 1179.
Congress has not plainly stated that non-human animals have standing to sue for copyright infringement. Nothing in Title 17 of the United States Code even hints at that possibility. Indeed, imagining a monkey as the copyright “author” in Title 17 of the United States Code is a farcical journey Dr. Seuss might have written. The “children” of an “author” can inherit certain rights “whether legitimate or not” and that includes “children legally adopted” by the author. See 17 U.S.C. §§ 101, 201, 203 and 304. An author’s “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.” § 203(a)(2)(A). Accepting Plaintiff’s standing argument would present the bizarre possibility of protracted family and probate court battles when the offspring of non-human authors scrum over the rights to valuable works.”
The contention of the lawyer from PETA is that:
“The photographer’s description of what took place has evolved and changed in a very self-serving way over the last few years as the photograph has become more internationally famous”, “When you look at what he said in most recent book and initial descriptions, it was very clear that he had nothing to do with it. Naruto independently and autonomously picked up and made a series of photos borne out during the court case.”
Many authorities believe that Naruto cannot have the copyright and that Slater’s contribution to the photograph was not sufficiently creative to vest the copyright in Slater. The photo would therefore be in the public domain available for all to use.
This is the stand taken by Wikimedia, the parent company of Wikipedia.It claims that no one owns the copyright in the photos. Wikimedia claims that Slater’s actions were not sufficiently creative to warrant copyright and that an animal cannot own a copyright, and therefore the photographs are in the public domain. According to the Chief Communications Officer for Wikimedia, Katherine Maher, “What we found is that U.S. copyright law says that works that originate from a non-human source can’t claim copyright.” Under the licensing note at the bottom of the Wikimedia page it states “This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”
It still seems unfair that copyright would not vest in Slater, who claims he positioned the camera on the tripod, controlled the lighting and later developed the pictures. According to Slater “I authored the set-up you see.” Slater also claims that the images are registered/submitted to the U.S. Copyright Office, though the Office has made no decision on the copyrightability of the photos for Slater.