Tag: PETA

“Monkey selfie” photographer reportedly broke. And for what?

Photo sources by mrbrainous & artush

This is a story about how people with self-righteous and futile agendas end up harming creators for absolutely no reason—and even end up harming society in the bargain. I’ve made light of the “monkey selfie” case in past articles because it’s hard not to. I mean, there’s a monkey in it.  But for U.K. wildlife photographer David Slater, it’s no laughing matter, especially after the organization PETA decided to sue him on the grounds that the copyright in the photograph belongs to the crested macaque depicted in the image.  The Guardian reports that Slater is now financially broke as a result of defending himself in this ridiculous case, and it’s impossible to fathom an upside to any aspect of this whole story. But let’s back up a little …

In 2011, Slater was working on the Indonesian Archipelago on the island of Sulawesi, studying a troupe of black crested macaques. These animals are endangered, hunted for meat, and it is only because of photographers like Slater than many of us even know a damn thing about black crested macaques.  According to his own statements, Slater spent three days learning to use the animals’ natural curiosities to his advantage and then purposely set up the conditions by which the macaque in the “selfie” (a female he refers to as Ella), ultimately snapped her own image while he braced the camera on a tripod.

There is nobody—other than the monkeys themselves—who can refute Slater’s description of the conditions by which the photo was made; and as this is the only evidence available, his account would seem to tilt in favor of his ownership of the so-called “monkey selfie.”  Based on American case law in photography, from the seminal case (Sarony v. Burrow Giles, 1884) to the present, I don’t believe it is farfetched to expect that a court would hold that Slater made enough creative choices in the production of this photograph to affirm his copyright.  But even if I’m wrong about that, it’s not for me or any party other than a court to really decide. As such, I personally would not use the image, even though I can get away with it.

But Wikimedia took it upon themselves to litigate that decision internally and then made the “monkey selfie” freely available to the world via Wikimedia Commons, refusing Slater’s request to have the photo taken down from the site. By the time the “monkey selfie” controversy hit social media, the dominant narrative seemed to be that Ella had randomly stolen Slater’s camera and inadvertently snapped an image of pure happenstance, which does not square with Slater’s own story.  If this were the case, however, then Slater’s claim of copyright in the image would be very weak.

But unless there is some evidence to contradict Slater’s own account of how the image was made, Wikimedia had no grounds, other than its own bully-sized weight, to assert that the photo lacked any copyright whatsoever. According to The Guardian, Techdirt followed in kind, also refusing to take down the photo, and Mike Masnick published a few articles asserting the absence of a copyright in the image as though it were a settled matter.  But it wasn’t a settled matter. Neither Masnick nor the Wikimedia Foundation had any right to declare that Slater’s claim of copyright in the image was invalid, which amounted to these parties—along with every other entity that used the image thanks to Wikimedia—essentially saying, “So, sue me.”

Many who rail against the enforcement of copyright in the digital age, suffer from the delusion that they are always defending the little guy against corporate or state power.  Sometimes, this is true, but not nearly so often as they like to think.  In fact, many self-appointed defenders of “digital rights” trample little guys all the time, and without in any way acknowledging that they’re doing so. The point I want to stress here is that Wikimedia, Masnick, and others were standing on their own notion of principle; and it would not occur to any of these parties to consider a) the standard of “originality” in copyright is subtle; b) there may be more nuance to the author’s claim than they think; or c) when in doubt, some basic respect for the presumptive author of a work might be accorded.

That last thought about respect seems entirely anathema to the opponents of copyright, which is part of what makes this story so egregious. Wikimedia and Masnick were both making a point that served no purpose other than to advance a maximalist (yeah, I said it) anti-copyright view. And society did not benefit from any of this nonsense.  Instead of Slater licensing the photo and using the revenue to pay his bills and then set off on another expedition, he’s now deprived of revenue, and society actually loses whatever photographs he is now not capturing.  “If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I’m not,” says Slater for The Guardian.

Enter PETA

It is at least likely—though we probably can never know—that it was Wikimedia’s initial refusal to consider Slater’s copyright that ultimately brought the “monkey selfie” to the attention of PETA. In a certain sense, this might have been like PETA’s too-good-to-pass-up “Dancing Baby” moment.  A monkey took a selfie, and the story went viral?  How could they not seize such a golden opportunity for anthropomorphic evangelism and fundraising? Of course they had to assert that the monkey owns the copyright.  All they had to do was sue the photographer.  Sure, he might go broke defending himself, but screw him because PETA is opposed to humans “exploiting” animals by taking pictures of them in the first place.  (Spoiler: I don’t have any love for PETA).

Now, don’t get me wrong, I think the humane treatment of animals is important.  But if this organization is going to spend federal-lawsuit money arguing that an animal can own a copyright, this only proves that they neither understand copyright law nor really give a damn about the welfare of the animals themselves. In fact, if they just spent the litigation money on the macaques’ behalf, they’d do more good; but that isn’t what PETA seems to care about. What they seem to care about is evangelizing a maximalist view of animal rights and bringing attention to themselves. David Slater is just collateral damage in their agenda, never mind that he’s the only party in this whole fiasco who has actually done anything positive for this endangered species.

Some of the reporting about this story, like this article in The New Yorker by Jay Caspian Kang, places too much emphasis on button-pushing with regard to copyright in photography.  Even the photograph that affirmed the copyrightability of photographic works in the U.S. in 1884 was not captured by the owner pushing the proverbial button. The standard for consideration begins with the question of who made the creative choices—and this can be quite minimal—to produce the resulting image.  So, without much deliberation, the courts ought to be able to glance at precedent and conclude that unless a monkey, or any other fauna, can minimally express the choices or steps she took to produce the image created, there are no grounds for her owning a copyright.  Unsurprisingly, intellectual property is not available to creatures that have not developed a capacity for communicating complex concepts through language.

Still, as the PETA lawsuit now burns time and money at the Ninth Circuit Court of Appeals, what social interest can anyone say has been served by either the digital rights or the animal rights activists deciding that David Slater is not the owner of this photograph?  Slater is now looking for work other than photography to pay his legal fees; the macaques get nothing out of all this grandstanding; and zero progress is made in copyright law in any useful context.  I guess people can feel free to make Ella-the-Macaque memes on Facebook?  Right, they’ll do that anyway.

Yeah, this whole story is a joke. But it isn’t actually funny.

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

No Copyrights for Critters Says Judge

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.

*This is satire. I have no knowledge that Mr. Prince intends to make use of the “monkey selfie”.