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The Fight over one Macaque’s Selfie

By Andre Tayor

A web of copyright disputes, ethical considerations, and animal rights activism unfolded when US courts deliberated the fate of one macaque’s selfies. In 2011, a pair of female crested macaques inadvertently captured a series of selfies on photographer David Slater's camera when it was left in an Indonesian reserve.

One of these seemingly innocuous snapshots was taken by Naruto, a young female crested macaque, and would soon become a viral image making its way to one of Wikipedia’s online pages. Slater would sue in 2014, claiming the pictures were his copyrighted works and that Wikipedia used the images without his permission.

Wikipedia countered that the photo is not copyrightable because it was taken by an animal, which does not have the right to own a copyright. The organization argued that because there was no one on whom to bestow copyright, the image falls into the public domain. The US Copyright Office released a report in late 2014 stating it will not register works produced by “nature, animals, or plants”, backing Wikipedia’s position.

Upon learning of the case, PETA sued Slater to assert Naruto’s ownership of the copyright and be appointed her administrator of profits from sales of the selfies.

The basis of PETA’s claim was that Naruto took “purposeful and voluntary” actions independent of Slater to take the selfie. These actions included “purposely pushing the shutter release multiple times (and) understanding 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.”

PETA further asserted that Naruto was already accustomed to seeing cameras used by tourists. As such, PETA argued that Naruto, as the subject and creator of the images, should hold copyright ownership, challenging traditional notions of authorship and creative agency.

Conversely, Slater argued that his company Wildlife Personalities Ltd. owned worldwide commercial rights to the photos. He argued that he was the rightful owner of the pictures because he arranged the conditions which allowed Naruto to successfully press the button and take the selfie.

Slater asserted that not only did he build a “trustful, friendly relationship” with Naruto, but he also made artistic decisions about the camera (such as lens width and lighting) that demonstrated his role in engineering the photo. Furthermore, Slater argued that he previously used the images in a book titled “Wildlife Personalities”, which was copyrighted in both his and his company’s name.

Legal proceedings ensued over a few years, marked by significant rulings and appeals. In 2016, a federal judge in San Francisco denied Naruto copyright ownership, citing his non-human status under the Copyright Act. US District Judge William Orrick recognized that Congress and the President can extend the protection of law to animals as well as humans, but stated there is no indication that they did so in the Copyright Act.

While PETA initially appealed the 2016 ruling, the following year the organization reached an apparent settlement with Slater. Under the terms of the settlement, Slater pledged to donate 25% of any revenue from the use and sale of Naruto’s selfie to charities that protect crested macaques in Indonesia. When both parties petitioned to dismiss the appeals case, the Ninth Circuit Court of Appeals denied the order, stating that courts should not aid the strategic actions of parties trying to manipulate court precedent for their own purposes.

The court interpreted the joint motion to dismiss the appeal as an effort by the parties to prevent the court from ruling more definitively on the ownership of copyrights by nonhumans. Citing Suntharalingam v. Keisler, the court stated it must not accommodate “institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.” Suntharalingkam v. Keisler, 506 F.3d 822, 828 (9th Cir. 2007).

The court reaffirmed that the Copyright Act does not extend to animals in a three-judge panel. Judge Carlos T. Bea wrote the ruling opinion and expressed that because the Copyright Act does not expressly authorize animals to copyright infringement suits, “Naruto lacks statutory standing to sue under the Copyright Act.” Naruto v. Slater, 888 F.3d 418, 426 (2018).

In a concurring opinion, Judge N. Randy further analyzed the circumstances under which Naruto could even be represented in the copyright infringement suit. He stated that the “next friend status” PETA used to justify its representation of Naruto was potentially susceptible to abuse.

He claimed that the concept opened the door to parties merely claiming some relationship to an animal to obtain standing and pursue their own institutional goals. As such, he argued that the case should be dismissed because PETA’s “next friend status” was void.

In response to the Ninth Circuit’s ruling, PETA released a statement reiterating that Naruto had been discriminated against as a nonhuman animal. However, the organization drew attention to the fact its “groundbreaking” settlement still stands. Slater also put out a statement on Facebook expressing “I so hope that wild animals are granted more and more fundamental rights in the future – like rights to dignity, survival, homeland, and their evolutionary privileges.”