macaque

Bananas?!

May 7, 2018 / Blog, Case Comment

Can a self-portrait snapshot taken by a monkey constitute a work of authorship?

A photo of a macaque (known as Naruto) grinning at a camera in Indonesia went viral on the internet in 2011. Photographer David Slater left his camera unattended on the jungle floor, the Sulawesi crested macaque grabbed it and – mimicking human behavior – took a series of selfies. This funny photo shoot was the start of a seven-year legal battle in mainly two puzzling legal cases.

Wikimedia Commons reproduced, made available online and hosted the images without permission; according to the online repository the images are royalty free in the public domain, as animals can not be the owner of a copyright.

David Slater opposed on the basis of copyright protection for the photographs by the monkey.

He argued that he orchestrated the selfies deliberately, irrelevant the fact that a monkey pressed the camera button.

This reasoning pushed the US Copyright Office to update its 1222-page manual in 2014 stating that the Office will not register works produced by nature, animals, or plants, works created by divine or supernatural beings. The first example of works that lack human authorship now explicitly states: “A photograph taken by a monkey”. A photograph taken by a monkey is not the result of intellectual creation and therefore not protected by Copyright.

The animal rights group PETA –  as ‘next friend’ of the monkey – brought a lawsuit against Slater claiming he himself infringed the monkey’s copyright by releasing a book including the famous monkey selfie. All proceeds from the photos should benefit the monkey. The two parties came to an agreement and asked the Ninth Circuit to dismiss the case, but the court surprisingly refused. The Court ruled PETA lacks ‘next friend’ status to bring the action on behalf of the monkey. Also the fact that animals can not hold copyright was confirmed.

Common sense…

Repeatedly authorship has been related to ‘persons’ and ‘human beings’. The definition of authors was not expanded to include animals. A work of authorship must possess some minimal degree of creativity to sustain a copyright claim (see Feist v. Rural Telephone).

Photographs are original in the sense that they are the author’s own intellectual creation (see Infopaq case and Temple Island case). The author’s own intellectual creation reflects his personality by his choices when taking the photograph: the subject, the background, the lighting, the angle of view, framing and the atmosphere created are deliberate (see Painer case).

Cited case law in our Copyright Database:

Featured Photo is that of Naruto
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