In a year that began with the vagaries of Left Shark, we have our most bizarre art law story of 2015—so far. Last year, the United States Copyright Office released a public draft of the Third Edition of the Compendium of U.S. Copyright Office Practices. Among the new items that leapt out at practitioners was the section of examples of non-copyrightable works, which included “A photograph taken by a monkey.” The Copyright Office was inspired to include this example because of a 2011 photograph taken by British nature photographer David Slater. A crested black macaque picked up Slater’s camera and pressed the shutter button, and the result became known as the “monkey selfie.” While as I said at the time, I thought the point was debatable to the extent that Slater could intentionally have left the camera within reach of the animal the same way that leaving something exposed to nature could still result in a copyrightable work, the question was obviously (I thought) limited to whether or not Slater could restrict reproduction of the work as the author.
News broke today that we are fully through the looking glass, however. People for the Ethical Treatment of Animals, or PETA, have filed a lawsuit in the Northern District of California against Slater and his publisher Blurb, and a U.K. company named Wildlife personalities.
The lawsuit makes the following claim on behalf of the macaque in question, "Naruto" (last name unknown):
Naruto has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner. While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto.
The claim of authorship by species other than humans is not “novel.” It is completely unsupportable. First and foremost, as if it needed saying, the Copyright Act repeatedly refers to authors and owners in the context of “natural persons.” Webster’s dictionary defines “person” as:
1. a human being, whether an adult or child:
Even hesitantly taking the claim at face value, a passerby who picked up a camera and took a picture inadvertently would absolutely face a tall hurdle claiming copyright: in issuing the Compendium, the Copyright Office has already said that copyright can only attach to “fruits of intellectual labor” that are “founded in the creative powers of the mind.” Pure accident does not meet that test. So while I still think Slater had a better copyright argument than the Copyright Office allowed, PETA’s analogy fails.
Additional and appropriately outraged commentary on the Complaint can be found here. You can be certain we will keep an eye on this one.
