Readers may be astonished, relieved, or understandably apathetic, to learn that a federal judge in California has ruled that a Sulawesi macaque may not sue for copyright infringement. In fact, Judge William Orrick broadened his ruling to affirm that no animal may own a copyright. The judge swears he looked and looked but could find no evidence to indicate that the rights expressed in the Copyright Act extend to the non-human fauna of the world. This news comes as a relief to me personally as I’ve been a bit on edge ever since one of our cats made transformative use of an unframed photograph of mine. I am absolutely sure this ungrateful feline, in addition to its habit of biting and scratching, is instinctively litigious.
This recent ruling was a disappointment for the People for the Ethical Treatment of Animals (PETA), who had filed suit against British wildlife photographer David Slater and his San Francisco-based self-publisher Blurb over a photograph known as the “monkey selfie.” The crested macaque, whom PETA identifies as Naruto, and who in 2011 snapped a photo of himself with Slater’s camera, would not comment on the outcome of the case or, for that matter, what he thinks of being named Naruto by a bunch of strangers from another species. Sources close to the macaque, including two tarsiers, a water buffalo, and a Komodo dragon also declined to comment, apparently too overcome with emotion to share their thoughts so soon after the defeat.
For those who missed the original story (and there really is no excuse), the saga of the “monkey selfie” initially exploded onto the Web in the Summer of 2014, when Slater sent a takedown request to Wikipedia, which was making use of the photograph without permission and allegedly infringing Slater’s claim of copyright in the image. The Wikimedia Foundation rebutted that because the monkey had snapped its own photo, the image belongs to nobody and cannot, therefore, be protected by copyright. The questions raised by this primate picture sparked a considerable amount of professional and amateur copyright theory in the media, and these conflicting views, combined with the cost of litigation, may have been a factor in Slater’s not pursuing legal action to enforce his claim against Wikimedia Foundation.
PETA, on the other hand, decided to assert that the fruits of one’s labor principle is as much an animal right as a human right. This despite the fact that, given the same evolutionary opportunity as humans, the non-homo-sapiens among us have yet to produce even a modest body of copyrightable works. In fact, in 2003, researchers at the University of Plymouth, in an attempt to test what’s known as the “infinite monkey theory”, left a computer keyboard in the care of six crested macaques—it is unknown whether any of these six were related to Naruto—to see what literary work they might produce. The monkeys managed to type five pages devoid of a single sentence in any known language, made an abundant use of the letter ’S’, and then liberally relieved themselves on the keyboard.
Still not undaunted by Naruto’s copyright rejection, Jeff Kerr, general counsel for PETA (a human), commented thus:
“Despite this setback, legal history was made today because we argued to a federal court why Naruto should be the owner of the copyright rather than been seen as a piece of property himself,’ Kerr said. ‘This case is also exposing the hypocrisy of those who exploit animals for their own gain.”
It is hard to imagine that PETA is going to make much progress conflating a respect for animals—which is a worthy endeavor—with copyright, or that this is a particularly wise use of resources given the organization’s overall agenda. Aside from those issues, the animal world can be brutal enough, what with the killing and eating of one another, and it seems to this observer that it would merely introduce a new form of cruelty to subject these poor creatures to the copyright debates. On the other hand, given a monkey’s penchant for throwing feces, this could provide a needed political boost to the floundering European Pirate Party.
In a related story, cognoscenti in the art world are murmuring that controversial artist Richard Prince may be about to exhibit a print for sale of the “monkey selfie”, which he will argue he has transformed simply by looking at it for a little while.* When told of these latest developments, the macaque they call Naruto scratched himself and looked toward the horizon as though remembering a simpler time.