Monkey Business: PETA Sues On Behalf Of The Monkey Selfie; Claims Copyright Belongs To The Monkey
from the this-case-is-bananas dept
Remember the monkey selfie? That is the photo that was taken by a macaque monkey in Indonesia, using a camera left on the ground by photographer David Slater. It first became a story back in 2011 when the photographs of the monkey became a bit of an amusing filler piece for some newspapers.
The story seemed to die down for a while, but became a thing again last year when Wikipedia also refused to take down the public domain image. As we noted, the whole fight highlighted how ridiculous the belief is that everything must be owned. Even more ridiculous was that David Slater then threatened the public interest group Public Knowledge over the monkey selfie… and then we received a totally laughable cease & desist based on a questionable scheme claiming some sort of “personality rights” for the monkey under the laws of Guernsey (don’t ask).
While all of this was going on, Sarah Jeong wrote a pretty funny satire piece about why the monkey should get the copyright… but it appears that the publicity hounds at PETA (People for the Ethical Treatment of Animals), who are known for their ridiculous publicity stunts, decided that this was a cause worth taking up and have now filed a lawsuit on behalf of the monkey against the photographer David Slater. Think of it as abusing the legal system for publicity.
Okay, while we’ve gone over the legal arguments in great detail in the past, let’s do a quick recap. There are three general arguments about the copyright in the photo: (1) Slater has the copyright (2) the monkey has the copyright or (3) no one has the copyright and the image is in the public domain. (1) is clearly not true. In order to get the copyright you need to take the picture or have the copyright assigned to you, which would require the photographer to go through the process of assigning the copyright to you. Slater said from the beginning that he left the cameras on the ground and the curious monkeys took the photograph, so by his own words, he made it clear that he was not the photographer and does not get the copyright. On (2), copyright law is pretty clear that only humans can get copyrights, and thus the monkey cannot have the copyright, nor can it assign the copyright to a human, because it never had it in the first place. So the remaining option is (3) the image is in the public domain.
In fact, last year the Copyright Office itself weighed in on this with its Compendium of US Copyright Office Practices, which pretty clearly states no copyright on monkey selfies:
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. Naruto should be afforded the protection of a claim of ownership, and the right to recover damages and other relief for copyright infringement, as asserted on his behalf by the Next Friends.
The lawsuit then requests that the court not only give the (non-existent) copyright to the monkey, but then allow PETA to administer the copyright on the monkey’s behalf. The lawsuit doesn’t even attempt to get around the whole “not by a person” thing other than to claim that these monkeys are really special. They may be, but it doesn’t change the law.
Also, it barely seems worth mentioning, but PETA seems to also ignore that the statute of limitations on copyright law is… three years. And the photograph was taken over four years ago. As Matt Schruers notes, it appears that the plaintiff, Naruto, was, well, “monkeying around” all this time, rather than filing a lawsuit in the allowed time period. Amazingly, PETA got a decently large and well known law firm, Irell & Manella, which handles lots of copyright cases, to file this joke of a lawsuit.
This case can and should be tossed out for a whole variety of reasons from standing to statute of limitations to simple basic copyright law. But, again, if it’s all just yet another publicity stunt by PETA, it’s not clear that they care. But, using the judicial system for publicity stunts is generally frowned upon. Whether or not this monkey business is sanctionable is something that a judge may have to explore eventually.
Filed Under: copyright, david slater, monkey selfie, monkeys, public domain
Companies: irell & manella, peta
Comments on “Monkey Business: PETA Sues On Behalf Of The Monkey Selfie; Claims Copyright Belongs To The Monkey”
WAIT, WAIT, WAIT. Is the monkey called NARUTO? Call Pierrot to add more filler.. I mean, insanity to this issue.
Re: Re:
Kishimoto Masahi called and want his cut.
PS. for folks that doesn’t know what the name Naruto is, https://en.wikipedia.org/wiki/Naruto
Well I guess PETA is a monkeys uncle for trying this stunt.
Re: Re:
Let the monkey file the paperwork himself. If he can do it, let him sue.
Well, yes, you already said “PETA”, so abusive publicity stunts can be assumed up-front.
But as PETA stunts go, this is a pretty mild one. At least they’re not supporting terrorists or encouraging high school kids to drink beer this time…
Re: Re:
According to Hollywood, violating copyright puts money directly into the hands of terrorists, and I’m pretty sure that after reading about this, at least a few high school students will turn to drugs and alcohol.
Re: Re:
I’m no fan of PETA, but I do need to point something out to everyone: the reason you think all they do is publicity stunts is because those are the things that get publicity, and thus the things you hear about. But PETA is actually a pretty loose organization and there are people within it who do good work (or even if you disagree with it, real and not insane work).
e.g. in college I interviewed a PETA lobbyist who spent all his time just pursuing one simple, direct and sensible goal: he worked to bring new non-animal endocrinology tests that had been approved and adopted in Europe to the US and Canada, by encouraging the EPA and other agencies to usher them quickly through the regulatory approval process. Switching to the non-animal tests had basically no downsides and would result in thousands of fewer animals being experimented on, and all it needed was some regulatory attention.
Stuff like that seems entirely reasonable and even admirable to me, and I really wish PETA would focus entirely on that kind of thing and not on their ridiculous antics. But it is important to remember that there is some real work happening behind the publicity stunts.
Re: Re: Re:
But for every sensible kid there are any number of painted fur coats, or superglued locks on butchered shops, or tormented families of vivisectionists, or break ins at laboratories, or …….
Animal rights activists are right up there with the pro-lifers.
Re: Re: Re: An Anti-Life Supporter are you?
I take it that you are a full blown supporter of Darkseid. Be gone from this planet you insidious Dominator.
Re: Re: Re:
Too bad PETA is one of the largest Animal killing organizations in the world. Maybe they should work on that before filing copyright claims for a monkey.
Re: Re: Re:
Agree. I think it’s a shame that PETA regularly goes out of it’s way too look both foolish and like extreme radicals for really no benefit to themselves or the animals they supposedly try to protect.
As to this story, I think there are some interesting questions on what kind of rights sufficiently intelligent non-humans should have that we’ll need to address in the future. We already accept that children and those with certain mental handicaps have some rights, but not others. Whether the first time we have to confront it is some kind of AI, or a genetically enhanced smart animal, or something we can’t even foresee, the day is eventually coming.
Re: Re: Re: Re:
As those interesting questions move out of philosophy classrooms and into the machinery of government, doesn’t it strike you that they should be addressed in the first instance, not by the federal courts, but by the Congress?
Perhaps you envision a more sci-fi role for the berobed judiciary: A role where the separation of powers doctrine has lost all potency.
Re: Re: Re:2 Re:
Where did he say it needed to be addressed by the judiciary system? I read his post to indicate something that needs to be addressed by society at large, whatever form that reasonably takes.
Re: Re: Re:3 Re:
We are, after all, discussing this in the specific context of a particular complaint which has been filed in United States District Court for the Northern District of California. Perhaps that immediate fact from the article escaped your attention.
When Josh wrote, “As to this story, I think…”, he was, most presumably, writing in the context of this story here—and its latest development as chronicled in the article above.
Re: Re: Re:
In that case the sane members of the group need to do something about the crazy members, if nothing else by publicly making it clear that the more extreme members are not proper representatives of the group.
Similar to the police, if the only ones that make the news are the minority on the extreme edges, and the sane majority stays silent, then it doesn’t matter if the sane/good are technically in the majority, all of them are going to be seen as represented by the worst among them, because those are the only ones getting attention.
Re: Re: Re: Re:
Yeah, that’s how the activists and anarchists operate. You appeal to their better senses and they stop being activists and anarchists.
Re: Re: Re: Re:
In this case, perhaps the sane members of the California state bar should do something about the crazy members of the California state bar.
Or perhaps instead, the sane members of the public should conclude that the crazy California bar is incapable of regulating itself.
Re: Re:
Abusing the federal court system is “a pretty mild” “stunt” ?
O RLY?
Re: Re: Re:
Compared to some of the other insanity PETA has pulled… yeah. On an absolute scale, though, it’s certainly not acceptable. Whether it’s actionable is up to the judge who has to take time away from overseeing real cases to preside over this mess.
Re: Re: Re: Re:
Certainly, the judge decides motions for sanctions under FRCP Rule 11.
But, in theory, at least, even in federal court, an attorney mustalso abide by California Rules of Professional Conduct Rule 3-200(B), “Prohibited Objectives of Employment”
Is it at all likely that the California state bar actually enforces this rule? For abusive complaints filed in federal district court? Or is it really that this rule is just another toothless laughingstock. Promulgated for show, ignored in practice.
Same group who wanted to ban Mario Bros. for its abuse of turtles…
Go figure…
I hope this rock
we’re all on stops spinning long enough for me to jump off. I swear, first-world problems…
C&D on PETA's use of our Galactic TM on PETA.
We, the members of the Galactic Trademarked PETA organization (People Eating Tasty Animals), demand that the pissant P.E.T.A. group with their quaint local terrestrial inferior Trademark immediately cease and desist use of our Galactically known, copyrighted and trademarked trade name and trade dress.
Failure to comply with this GC&D could result in early destruction of the planet hosting the non-compliant group via the delivery of the Illudiam Q36 Explosive Space Modulator.
We eagerly await terrestrial termination of the use of our PETA trademark within the next 30 days, or we will have no choice but to destroy your planet. Q36ing from orbit as it’s the only way we can be sure to protect our IP rights.
Thanks,
Marvin, lead counsel to People Eating Tasty Animals
Anit-SLAPP anyone?
I hope the defendant gets this thrown out and gets court costs and punitive damages from PETA in the process.
Unfortunately, with the way many people treat animals as well or better than people, they might actually win this case.
"another"?
Everything that PETA does is a publicity stunt. There is no need to question if this is yet another publicity stunt.
any news item that has “PETA” attached to it automatically goes into my “mentally challenging” bookmark folder.
works 99% of the time… and this one is no exception… sigh.
FRCP Rule 11
FRCP Rule 11
d
Court
Once Naruto has testified in court about how him(her?) not having the copyright will hurt him(her?) financially, I will accept PITA’s argument. Until them, NO!!!
Monkey and Copyright
So I go into a park and set up my camera. I position the camera to shoot a picture of a meadow and walk away for a while. I had attached a sensor to the camera which causes the camera to take a picture when something moves in the meadow. I come back and find my camera took 10 pictures. Are they mine? Do I own the copyright for them (assuming i’m not working on someone’s behalf)? And if so, how is this different from Mr. Slater letting the monkey take the picture. I believe the monkey does not have agency, so it cannot hold the copyright. But why doesn’t Slater? It’s his camera; he brought it to the location.
Re: Monkey and Copyright
You set up your camera to take pictures.
Slater lost his camera to a monkey, and the monkey figured out that buttons could be pushed.
Re: Re: Monkey and Copyright
I suppose I would also own the copyright if I set up a system to snap a picture each time the ocean waves smash up against the rock. That makes sense.
Now, switching to ‘just trolling mode’ . . .
I have this device that, when a button is pushed, it takes a picture. I left the device on the ground anticipating the possibility that something might come along, pick up the camera and push the button.
Since I set up my apparatus to take pictures, do I own the copyright when a monkey takes the picture?
If I own the pictures when I set up a tripod camera to auto-shoot pictures when something moves in the frame, they why wouldn’t I own the copyright in this hypothetical when I left my camera so that it could take a picture if something picked it up and pushed the button?
Re: Re: Re: Monkey and Copyright
That’s already been legislated against. Specifically. As referenced (and highlighted) above. You have to push a button to take a picture, therefore, it doesn’t matter if the camera has a hair trigger mechanism, if a button is pushed by a monkey, the monkey took the pic and therefore there’s no copyright in the photo.
Re: Re: Re:2 Monkey and Copyright
The Compendium of US Copyright Office Practices is most definitely not “legislation” in the sense of having being enacted by Congress and signed by the President, pursuant to Article I, Section 7.
Rather, 17 U.S.C. § 702 provides:
What was highlighted in the article above was not “legislated”.
Re: Monkey and Copyright
Do we really have to rehash this bad argument every time this subject comes up?
Re: Re: Monkey and Copyright
No.
Although if you have a link handy to the previous Techdirt discussions, it might save someone from having to Google ’em up. Otoh, if not, then not.
Re: Re: Re: Monkey and Copyright
Techdirt is the most self-referential website on the planet.
Without even checking I can almost guarantee that almost every blue word in the article links to the stories you are looking for.
Re: Re: Re:2 Monkey and Copyright
I link, therefore I am.
– TechDescartes
Re: Monkey and Copyright
“I believe the monkey does not have agency, so it cannot hold the copyright.”
What about the pro-IP shills around here. They’re about as intelligent as a monkey. Actually that’s an insult to monkeys. Do they, based on their intelligence and lack of mental capabilities, have agency?
To:
United States District Court
Northern District of California
From:
Naruto
North Sulawesi, Indonesia
To whom it may concern:
As the holder of copyright on the image in dispute in this case, I can tell you this:
1) PETA ain’t my friends, they’re just in it for the attention.
2) I made the picture, it’s mine, not Slater’s. Slater admitted I took it. (And since you are reading my note, I’m obviously as much a person as you are…)
3) I donated the copyright to the park to help in my upkeep. I’m too busy to keep track of all that anyway.
Don’t make me come into court and throw poo.
Respectfully,
Naruto
Guess this is the purest definition of “Monkey Business” .
Re: Re:
Enough monkeying around already.
PETA's goal is animal rights, not copyright maximalism
PETA is not seeking to extend copyright, they are attempt to extend animal rights.
PETA is a strange animal, if you’ll excuse the language. Unlike, say, ASPCA, they are not really concerned about the welfare of animals; rather, they are concerned about whether animals should have legal rights.
I doubt PETA understands what copyright even is… They just want a monkey to “own” “intellectual property.”
Re: PETA's goal is animal rights, not copyright maximalism
Confused.
Isn’t PETA about People Eating Tasty Animals?
Re: PETA's goal is animal rights, not copyright maximalism
It looks to me like PETA is trying to demonstrate that FRCP Rule 11(c)(3) is just written down for its in terrorem effect.
They’re betting that there’s not a federal judge sitting who actually will ever do that.
Kind of a worthy purpose—showing everyone that the rules don’t really mean what they say.
Re: Re: PETA's goal is animal rights, not copyright maximalism
That is pure genus.
You are all missing the MOST IMPORTANT thing of all!
This monkey is under 18 years of age and appears to be naked! If it is enough of a “person” to hold the copyright than it it should also liable for child pornography.
THINK OF THE CHILDREN, HUMAN AND OTHERWISE!
Re: You are all missing the MOST IMPORTANT thing of all!
Replied to the wrong thread…
THIS is pure genus.
Next Up
Monkey staffed sweatshops.
Re: Next Up
Monkey directed Hollywood Motion Pictures.
An amusing argument Slater could use
Slater can offer multiple alternative arguments defending against the copyright infringement claim by PETA.
One such argument is that Slater did not infringe the monkey’s copyright because . . . ta da . . . just as TechDirt and others have pointed out, the picture is in the public domain.
I would find this counter argument amusing, ironic simply because it is the opposite of what Slater argued when he wanted to own the copyright in order to profit from it. Now it is more expedient to argue the image is in the public domain, hence no infringement.
Ok, that’s enough. No more monkey business.
Cute monkey.
PETA doesn’t have a case, and they don’t have a good argument for why copyright law should be rewritten.
Copyrights exist as a way of rewarding creators and encouraging them to produce more works. If the monkey gets this copyright, will it be inspired to take more photos?
Will other monkeys be inspired to take of photography or another art form?
No? Then there’s no point in upsetting existing law.
Monkey and Copyright
I’m fine with this as long as you can pay the license fee in bananas.
Bright side: expiration of the copyright
Even if, by sheer luck and stupidity of the court, the copyright does end up in the hands of the monkey, it’ll be another question entirely whether “X years plus life of author” meaning, assuming my understanding of this is correct, once the monkey that took the picture, naruto, kicks the bucket, the photo will enter the public domain. The fact his life expectancy is significantly shorter than a human’s is a bonus.
Re: Default [was Bright side: expiration of the copyright]
If the suit is contested, the outcome of the action in the main seems certain. The only doubt concerns sanctions: Whether upon motion of the defendants, or upon sua sponte motion of the court—if sanctions are granted, will they be upheld on appeal?
But suppose that defendants read the complaint, and decide that it is so manifestly ridiculous and absurd that it requires no answer nor even any appearance. If defendants default, what do you suppose a federal court will do?
Re: Bright side: expiration of the copyright
“”X years plus life of author” meaning, assuming my understanding of this is correct,”
Your understanding couldn’t be any further from correct, in fact you’ve got it ass-backwards.
Re: Re: Bright side: expiration of the copyright
Fortunately for that poster, standard addition in the natural numbers is commutative, as is the usual definition of addition in the rationals, and reals too.
Masnick needs his facts right
Reading previous posts on this selfie debate by Masnick, as well as other news outlets, none say that the cameras were left on the ground. Masnick has made this fact up. In fact many quote the camera on a tripod or a log, as does David Slater’s own website. This totally changes what Masnick is claiming. Slater is the author quite clearly and has the copyright.
Re: Masnick needs his facts right
Reading previous posts on this selfie debate by Masnick, as well as other news outlets, none say that the cameras were left on the ground. Masnick has made this fact up. In fact many quote the camera on a tripod or a log, as does David Slater’s own website. This totally changes what Masnick is claiming. Slater is the author quite clearly and has the copyright.
In the original story about this, Slater clearly said the monkeys KNOCKED THE CAMERA and then played with it. In other words it wasn’t his composition in any way. If he’s changing his story later, then he lied up front.
http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borrows-photographers-camera.html
Re: Re: Masnick needs his facts right
Facts, you come armed with facts? How dare you!
Here’s one you did miss, however:
Yes, the picture(s) were taken in 2011. But they are suing for a book published in 2014. (See paragraph 4 of the complaint.) Therefore, no expiration of the statute of limitations.
Re: Re: Masnick needs his facts right
Camera being knocked is not a camera on the floor. From reading Slater’s site and in photography magazines published in 2011, the knocked camera refers to when a monkey stole a camera and pressed the button but no shots were good enough to keep. The tripod and cable release came much later and this is when the selfies were taken. Slater used a tripod and offered a cable to the monkey. I guess he also made up the composition and studied where the light was coming from. He would also have set dials on the camera to get such a stunningly exposed and in-focus shot. Masnick you are wrong and clearly making up facts to make your points about copyright. It is not what presses the button but the author of the shot who gets copyright.
Re: Re: Re: Masnick needs his facts right
Does that mean that if I set my camera to Auto, the camera gets copyright?
Re: Re: Re: Masnick needs his facts right
“in photography magazines published in 2011”
Do you have any sources?
“the knocked camera refers to when a monkey stole a camera and pressed the button but no shots were good enough to keep.”
That’s not how I read it on the site that Mike links to.
Re: Re: Re: Masnick needs his facts right
I responded to your post and I wonder why so many of my posts say they will be reviewed by staff before being posted? Something musta triggered the filter. Maybe because the submission froze the first time (it didn’t say the submission went through and when I tried refreshing the site in a separate window it doesn’t show up) so I went back and resubmitted it and it took that as an attempt to submit the same thing twice?
This is probably a sideways attempt to get the court to consider,
if just for a moment, the possibility of defining an animal as a
“person” under the law; much like a corporation, which is also
not human.
Even when they lose they might use such an error as a wedge
to pry open “animal rights” for future cases and wedges.
Re: Authors and owners [was ]
Title 17 though, generally speaks in terms of “authors” (a constitutional term) and “owners” (defined in 17 U.S.C. § 101). Without doing a keyword search, but relying on a small amount of familiarity with the statute, the 1976 Copyright Act generally does not use “person” where “author” or “copyright owner” is intended.
Curiously enough, in at least one critical place where the Copyright Act does talk about a “person” it qualifies that term as “natural person”. From the definitions in 17 U.S.C. § 101:
Re: Re: Authors and owners [was ]
…hence the sideways approach to legal “personhood”… ;]
If it were up to the monkey the picture would be in the public domain. After all monkeys love to freely copy off each other. Monkey see monkey do.
Hahaha, Naruto! I want to see the money’s kung fu moves.
Did techdirt even read the lawsuit? According to the Guardian it’s a money grab as “It seeks a court order allowing Peta to administer all proceeds from the photos for the benefit of the monkey”.
http://www.theguardian.com/world/2015/sep/22/monkey-selfies-copyright-lawsuit-peta
Re: Re:
And what does that mean, exactly? Setting up a trust fund to purchase the area to create “The Naruto Monkey Protection Park?”
I doubt it.
Re: Re:
Wow. So let me get a pet bird and ask for donations ‘for the benefit of the bird’. You are naive if you believe that garbage.
PETA is suing by proxy.
Proxies are illegal because copyright.
What PETA is doing is illegal.
I'm not a lawyer, but I watch TV
In all the lawyer TV shows I’ve been watching, the characters talk about how the plaintiff needs to have “standing”.
1) How can PETA sue on behalf of a monkey over a copyright issue? I can understand suing on behalf of an animal over mistreatment, but not giving a monkey proper copyright isn’t abusing an animal.
2) How can they file a lawsuit in a California court when the photo shoot took place in Indonesia? How does the US or California have jurisdiction?
Also, if they’re suing on behalf of a monkey in Indonesia, how do Indonesia’s copyright laws come into it?
3) And even if they win (which is a stretch) how exactly will the winnings help the monkey? Like the other poster said, will PETA go to Indonesia and help fund the monkey’s park?
Re: I'm not a lawyer, but I watch TV
I think they’re relying on this, from the Federal Rules of Civil Procedure:
“A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.”
(The problem for them is that a monkey is not a “person”, incompetent or otherwise, and this is why the case deserves sanctions.)
Because the guy published a book in the US. They have jurisdiction.
Anyone using a work in the US can rely on US copyright law. (If this wasn’t the case, you’d see movies being shot and books being published whereever the strongest copyright laws were, and then imported.)
According to the lawsuit, if they win, they want the court to order that:
“… all net proceeds from the sale, licensing and other commercial use of the Monkey Selfies, including Defendants’ disgorged profits, less necessary and appropriate expenses, be used solely for the benefit of Naruto, his community of crested macaques, and preservation of their habitat;”
Re: Re: I'm not a lawyer, but I watch TV
You’re quoting FRCP Rule 17(c)(2), of course. But, if you read the complaint carefully, at paragraph 17, the plaintiff cites Rule 17(b):
(Emphasis added.)
This may be a mere scribner’s errror, but I’d be hesitant to presume that the plaintiff is relying on (c)(2) when they say (b). Obviously, (b) is not (c).
Re: I'm not a lawyer, but I watch TV
According to the U.S. Copyright Office’s Circular 38A, Indonesia is a party to several copyright treaties with the United States.
See 17 U.S.C. § 104 – Subject matter of copyright: National origin
(Emphasis added.)
Also note 17 U.S.C. § 104(b)(2), covering the situation when first publication occurs in a foreign nation which is a treaty party.
Why can’t I post using Tor? Dammit.
Parallel discussions
Just for the record: Links to parallel discussions of this topic at Ars Technica and Volokh.
(”Most self-referential website on the planet”, yeah 😉