Primate Pic Creates More Than Copyright Confusion

By Elizabeth Holtz

Sulawesi, an island in Indonesia, was famous for incredible diving and sensational coral reefs. Today, it might be more famous for producing the most celebrated simian photographer of our time. A crested macaque living in Tangkoko Reserve on Sulawesi rocketed to fame in 2011 after taking a pretty fantastic “selfie.” But he had some help. David John Slater, photographer and owner of Wildlife Personalities, had positioned his camera on a tripod among a troop of crested macaques. One of the troop members, Naruto, then pressed the shutter release, taking the now famous photo.

This past fall, PETA sued Slater claiming Naruto was the rightful owner of the copyright, not Slater. Slater, who has received some degree of international acclaim and fortune, disputed this. Further complicating the issue is that other organizations, including Wikipedia, had concluded that the photo was in the public domain and published it accordingly. More confusingly, Slater holds the copyright in Britain.

Photo taken by macaque monkey Naruto, British copyright held by nature photographer David Slater

Photo taken by macaque monkey Naruto, British copyright held by nature photographer David Slater

Last Wednesday, a federal court ruled that Naruto cannot hold the copyright for his selfie because there was “no indication” that animals fall under the purview of the Copyright Act. U.S. District Judge William Orrick punted the question back to Congress, noting that “if they think animals should have the right of copyright they’re free, I think under the Constitution, to do that.”

PETA’s lawsuit raises novel questions in copyright law, but frankly, those questions are pretty boring to animal attorneys. Far more important are the questions and discussions the lawsuit has prompted about the rights of animals, their dignity as autonomous beings, and the protections that would ensue. And PETA is not alone is raising these issues. The Nonhuman Rights Project is also pursuing litigation to secure certain rights for apes, specifically demanding that a chimpanzee named Tommy be released from captivity under a writ of habeas corpus.

Consider the implications if PETA had been successful. Monkeys would have rights as artists, able to profit from their paintings and sculptures, but not the right to bodily integrity. In much of the world, including the United States, monkeys can be and are sold to individuals, zoos, and testing facilities. If Naruto moved to the United States, legally he could have become a millionaire photographer and be imprisoned in a laboratory, subjected to intense physical and emotional torture.

This wouldn’t be new, the law is already full of contradictions and great injustices. If a cow makes a cameo in a movie, there are detailed regulations to ensure his safety and comfort on the set. For example, cows on studio stages (evidently known for slipperiness), must be provided with non-skid mats to prevent injury. But in the very next scene, it’s fine for two actors to be filmed eating his slaughtered brother in the form of a hamburger.

It’s worth mentioning that Slater himself first put forward the idea of animals having rights in his book. PETA’s complaint to the District Court references a sentence from Slater’s own photography book. Slater wrote, “The recognition that animals have personality and should be granted rights to dignity and property would be a great thing.” His tune quickly changed when it became clear that the granting of such rights conflicted with his own interests. This isn’t to demonize Slater, copyrights aside, he clearly was a vital player in the production of the photograph. Further, it is unfortunate that a wildlife photographer, working in advancement of wildlife conservation, has had his livelihood endangered while there are people profiting from the purposeful abuse of animals. In fact, I feel downright glum about Slater’s predicament. But the conflict between Naruto’s rights and Slater’s income captures the struggle of the animal rights movement.

Today, few would argue publicly that non-human animals should be abused or that, across the board, they lack sentience. Problems with granting animals rights only crop up when the right of an animal deprives an individual of something he wants. Most people agree that cows should not be intentionally abused. But if the abuse of a cow is necessary in the production of beef because one likes the taste of hamburgers and one wants those hamburgers cheap, so be it. Most people believe that chimpanzees should not be subjected to decades of imprisonment while enduring intense physical pain. But if the abuse of a chimpanzee is necessary because one wants to study hepatitis C, oh well.

Other groups have chastised PETA for what they see as a publicity grab in pursuit of a minimally important goal. Considering the tremendous suffering of animals across every sector of society, it does seem that copyright law is a bit less important. But I want to note definitively that animals should have the right to hold copyrights for their art, or rather animals do have this right, the United States simply doesn’t recognize it. Regardless, every mainstream conversation about animal rights is beneficial. We shouldn’t underestimate the value of having people consider, even just briefly, a monkey as an artist and innovator.

Elizabeth ‘Liz’ Holtz is For All Animals’ director of legislative affairs. She is an animal rights attorney and lifelong animal advocate. Liz manages  For All Animals’ coalition efforts to pass state laws that protect animals—like strengthening anti-cruelty laws—and defeating laws that harm animals—like ag-gag laws. She also oversees For All Animals’ Attorney at Paw program, which provides assistance to advocates interested in passing laws and ordinances that protect animals on a local level.