Judge: Monkeying around with copyright law


David Hejmanowski - Contributing Columnist



“PETA and David Slater agree that this case raises important, cutting-edge issues about expanding legal rights for nonhuman animals.”

— Statement from PETA

“Photographers are under enough pressure these days to make a living. We [don’t need] ridiculous interpretations of what copyright is from ignorant people like PETA.”

— David Slater, Photographer

If your elephant paints a picture, can you profit from it? If your dog howls out a hit pop tune, it is yours? If you leave your camera in a jungle and an old world monkey snaps a bestselling selfie, can you claim copyright protection? I don’t know about your songwriting dog, but as to your pachyderm and your monkey, it appears that we now have a pretty clear answer — not in the United States. We can thank a curious Indonesian macaque and the People for the Ethical Treatment of Animals for giving the answer to us.

The situation began in 2011 when wildlife photographer David Slater went to Sulawesi to document the endangered black crested macaque. Having located a troupe of them, he followed the monkeys for three days waiting to see if they would get comfortable enough for him to get some close-up shots. When they did, he noticed that they were particularly interested in his camera — grabbing at it and trying to get it from him. In his subsequent book “Wildlife Personalities,” he wrote:

“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 … . They played with the camera until, of course, some images were inevitably taken! … It was like the joy of seeing your new baby learn about something new and becoming enlightened with a new toy. They loved the shutter noise, but most of all they loved their own faces, ‘chimping’ away in what seemed to me to be total fun for them.”

Among the photos taken by the animals themselves, was one particularly striking selfie of a brown-eyed macaque. His face, tilted at a 45 degree angle, is perfectly centered in the image. His brown eyes are looking directly at the camera and his teeth are bared in an anthropomorphic smile. The monkey, while looking at its reflection in the camera lens, had pushed the button itself. The picture was an instantaneous success, launching Slater to stardom and giving him interviews, a book deal, and a steady income selling signed copies of the photograph.

To protect his interests, Slater requested copyright registration of the photograph in both the U.S. and the U.K. The registration was granted in London, but in Washington the U.S. Copyright Office refused protection, noting that Slater wasn’t the creator of the image and that an animal has no copyright protection under either statutory or common law.

Not satisfied that Slater could not establish legal rights to the work, PETA filed a lawsuit. In order to do so, they gave the grinning macaque a name — Naruto — and Naruto v. Slater was born. The suit was part of an ongoing effort by PETA to create or expand legal protections for animals. And it had a definitive financial purpose, too. Without copyright protection Slater couldn’t stop other people from profiting off the photo, but he could continue to sell signed copies. If “Naruto” owned the copyright, then Slater couldn’t keep selling signed copies of the picture.

The copyright office was unmoved, noting clearly on their website that artistic elephants and photographic monkeys could not get copyright protection. In January of 2015, a federal trial court agreed, denying PETA’s claim. PETA appealed, but on Tuesday of this week, seeking to avoid an appellate ruling adverse to either of them, Slater and PETA found a way to divide the profit pie. They agreed to drop the lawsuit, to leave the photograph without copyright protection, and that 25 percent of any future profits Slater earns from the photo will be donated to charities that protect the crested macaque’s habitat in Indonesia — a cause that the two sides both support.

So, if you’ve got a chicken that can play Chopin or a goldfish that makes sand drawings, don’t bother contacting the U.S. Copyright Office. They’re not going to help you.

As for me, I’m off to see if I can teach my cat to meow poetry.

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David Hejmanowski

Contributing Columnist

David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.

David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.