Monkey selfie suit is not all monkey business.

A couple weeks ago, I scorned the righteously flamboyant PETA for trying to sue a British photographer named David Slater for copyright infringement on behalf of an Indonesian macaque whom the animal rights group calls “Naruto”.  I mocked this monkey-pre-trial proceeding because, well, it’s pretty mockable; but as Tom Sydnor writing for TechPolicyDaily, points out, it isn’t necessarily a laughing matter.  For starters, Sydnor wonders whence PETA gets the legal standing—never mind the chutzpah—to presume to represent animals in this type of litigation in the first place.  He writes:

PETA cannot empower any federal judge to decide whether “Naruto” can own US copyrights until it has proved that it has constitutional and prudential standing to sue Slater on behalf of this particular Indonesian monkey. Its lawsuit thus raised the following question: Does PETA’s IRS-bestowed section 501(c)(3) non-profit status grant it the constitutional and prudential standing to sue a foreign, human nature photographer or videographer in the US on behalf of any animal in the world whose acts triggered a camera or camcorder?

Sydnor raises a concern of validity, suggesting that even allowing PETA to proceed any further with this case—rather than demanding sanctions and payment of Slater’s legal fees to date—the court may entrench the notion that not-for-profit status automatically grants a corporation the standing to sue on behalf any constituency it claims.  Sydnor writes:

Even if the US Copyright Act did authorize federal judges to decide whether monkeys can own US copyrights, some brute realities would remain. Federal court is not a Dr. Seuss book, and PETA is not the Lorax. Absent special circumstances, PETA lacks standing to sue anyone on behalf of the trees, random animals, Brown Barbaloots, “Cecil the Lion,” or an Indonesian monkey that some other primates allegedly named “Naruto.”

Sydnor further makes the point that PETA’s overreach in this case may be compared to certain actions of not-for-profits (e.g. the Electronic Frontier Foundation) when these organizations presume—Lorax-like—to speak for the Internet. And it is true that the semantics and hyperbole can get a little out of hand when these groups claim to represent our “digital rights” as though these are something separate from just plain rights.  While it is certainly the case that wired life poses new challenges vis-a-vis civil rights, these organizations tend to consistently favor laissez-faire conclusions about the all-sacred Web, which isn’t necessarily tackling said challenges.   In the same way that PETA often strays way beyond the question of humane behavior all the way into projecting our social philosophies onto the animal world, these digital activist organizations do have a tendency to describe the Internet as though it’s a delicate biosphere, untouchable by the ugly laws of Man, rather than what it is–a global advertising platform designed and run by huge corporations.

What sticks in my craw about this particular circus, zoo, cat fight, goat rodeo is that PETA’s anthropomorphic excess only aggravates the absurd misconception that copyright functions solely as a barrier or as grounds for litigation.  Because even if one could argue that the copyright in the “monkey selfie” belongs to the monkey himself, how might PETA demonstrate that its human employees know this particular primate’s wishes with regard to his copyright interest in the image?

At its most basic level, copyright is a legal affirmation of the author’s choice with regard to what may be done with a given work; and absent the ability to articulate this choice—either directly or through some agent—the copyright has almost no meaning. So, PETA ’s claim to know the macaque’s wishes regarding “his copyright” only promotes the fallacy that copyright can only be applied in one way.  How do they know the monkey doesn’t want to make the work available without restriction? Or perhaps he only cares about attribution. Or maybe since the photo was made as the result of a joint effort, the monkey feels he shares the copyright with David Slater.

Moreover, it seems that if PETA asserts that the animal kingdom is entitled to intellectual property rights, and if they cannot prove that the macaque they call “Naruto” engaged their services as a legal representative, then the organization is theoretically infringing this macaque’s right of publicity, which could lead to this farce getting even sillier as follows in this excerpted “court document” …

NOTE: This was written before I learned the macaque is a female. (Update 7/15/17)

Macaque v PETA

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