Can Monkeys Own Copyright? PETA Says Yes

Many are familiar with the “Monkey Selfie,” a widely circulated photo of a monkey named Naruto grinning broadly at the camera. When wildlife photographer David Slater left his camera unattended with a group of crested macaques, Naruto and his fellow simians snapped a series of selfies, including the famous shot. Naruto is once again making headlines, thanks to People for the Ethical Treatment of Animals (PETA).

PETA has filed a lawsuit against Slater alleging that he infringed Naruto’s copyright by profiting off sales of the photo. In addition to including the photos in his book, Wildlife Personalities, Slater has been selling the photos on his website. PETA argues that Naruto is the rightful copyright owner of the photo. In addition to stopping Slater from further commercial exploitation of the photo, PETA wants all proceeds from sales of the photo to directly benefit Naruto and his fellow endangered crested macaques living in an Indonesian reserve. Slater has called the lawsuit ridiculous and accused PETA of attempting to damage his image.

While this may sound like a frivolous lawsuit, especially given PETA’s notably litigious past, it raises interesting questions in the realm of copyright law. First, can animals even own copyright? Historically, the answer is no. Copyright protects original works of expression fixed in a tangible medium by affording legal protection to the “author” of the work. The Copyright Office has previously found that animals cannot be credited as authors under copyright law, even though the Copyright Act fails to include language limiting copyright owners to “humans.” Since animals are unable to create a copyrightable work, a work technically “created” by an animal can never be copyrighted. Instead, the work immediately falls into the public domain, meaning anyone can use the work. What does this mean for Naruto? Basically, even though Naruto created the photo by snapping the selfie, the monkey cannot be considered to be a copyright owner under current law.

Interestingly, PETA’s lawsuit is not the only thorn in Slater’s side. He is also battling Wikipedia for sharing the published Naruto photo online without Slater’s permission. Wikipedia insists that the non-copyrightable photo exists within the public domain. On the other hand, PETA asserts the photo is neither within public domain nor owned by Slater, but belongs solely to Naruto. Whether PETA will prevail in its latest animal crusade remains to be seen.

 

PETA’s complaint can be found here.

By: Stephanie Krause, ’17

USC Gould School of Law
©2017 USC Intellectual Property and Technology Law Clinic