[BRIEF NOTE] On the law and the ethics of the monkey selfie

[rfmcdonald]

The famed monkey selfie, taken by a female Celebes macaque David Slater is now a matter of law, with potentially great import. The situation was described by Discovery News' Jennifer Viegas.

A macaque named Naruto holds the rights to a photograph that he snapped of himself in 2011, according to a lawsuit filed by PETA today in San Francisco.

The lawsuit isn’t just about the famous selfie, which went viral, but instead challenges our views on what constitutes property and ownership, PETA holds.

In a statement issued by the organization, PETA explained, “If this lawsuit succeeds, it will be the first time that a nonhuman animal is declared the owner of property (the copyright of the “monkey selfie”), rather than being declared a piece of property himself or herself. It will also be the first time that a right is extended to a nonhuman animal beyond just the mere basic necessities of food, shelter, water, and veterinary care. In our view, it is high time.”

The plaintiff in the lawsuit, filed at the U.S. District Court Northern District of California, is listed as “Naruto, a Crested Macaque, by and through his Next Friends,” including PETA and Antje Engelhardt.

The defendants are David John Slater and his company Wildlife Personalities Ltd, which PETA says both claim copyright ownership of the photos. Also named as a defendant is the San Francisco-based publishing company Blurb, Inc., which published a collection of Slater’s photographs, including two images said to have been taken by Naruto.

As for how Naruto came into possession of a camera, the lawsuit mentions that Slater left his camera unattended. The curious male macaque grabbed the camera and then not only took the selfies, but also photos of the forest floor and pictures of some other macaques.

In his book, Slater wrote, “The recognition that animals have personality and should be granted rights to dignity and property would be a great thing.” He then mentioned that macaques are “intelligent — artistic — complex.”

Now that the lawsuit has been filed, Slater had this to say to Time: “The facts are that I was the intellect behind the photos, I set the whole thing up. A monkey only pressed a button of a camera set up on a tripod — a tripod I positioned and held throughout the shoot.”

The potential import of this case and its legitimate issues are both observed by the Volokh Conspiracy's David Post.

I admit I didn’t see this one coming. It is easy — indeed, it is irresistible — to milk this one for laughs. To begin with: How do they know the plaintiff-in-interest’s name is “Naruto”? [There’s an old joke: Stranger to Farmer: “That’s a real nice hog you got there — what’s his name?" Farmer to Stranger: “Don’t know for sure, but we call him Bill."] Or that Naruto is 6 years old? And if Naruto owns the copyright, how do I negotiate with him to license use of the photo? And to whom does ownership pass when he dies? Etc.

But as I said before, the copyright question that the case poses — whether non-humans can be considered “authors” — is not entirely trivial, especially in a world of robots, self-driving cars, and music-generating software. It has an interesting constitutional dimension, inasmuch as the Constitution gives Congress only the power to grant “authors” rights in their “writings.” [Originalists will presumably have a field day tracking down the Framers’ view of non-human animals as “authors."]

And I also have a feeling that the ridiculous idea that non-human animals have “rights” of any kind (including ownership rights) will seem less and less ridiculous over time, and that the presentists of the future will look back and shudder at the manner in which we treated animals and wonder how we could have been so morally obtuse (somewhat in the way today we view slaveholders of days gone by).

As an amateur photographer myself, I would be very interested to see how Naruto took photos. Did it know what it was doing? How many tries did it take? Was it acquainted with photography beforehand? An animal fumbling is one thing, but a creator experimenting is another.

The involvement of PETA notwithstanding, this will be a case to watch.