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  • Writer's pictureWendi Gundersen

Monkeying With Copyright

PETA sued photographer David Slater and others for copyright infringement on behalf of a monkey it named Naruto. Or to speak more precisely, a crested macaque.

Sometime in 2011, Slater was photographing crested macaques in Indonesia. While there, Naruto took a camera that Slater left out and took a picture of himself: a selfie. The grinning image of the crested macaque became very famous. And PETA felt that it was unfair that Naruto was not financially benefiting from the selfie. So, in 2015, it sued Slater and others using the photograph with Slater's permission for copyright infringement.

The district-court judge ordered the case dismissed. He found that Naruto and, by extension, PETA did not have standing to sue. His rational was that Congress did not "plainly" provide for animals to be "authors" of copyrightable works. And under controlling Ninth Circuit case law, a law must plainly provide for animal standing. Thus, the judge had no choice but to dismiss the case.

Not satisfied, PETA appealed to the Ninth Circuit, which heard oral argument on July 12, 2017. Reports are that there was much laugher in the courtroom. But ultimately the results of this case could have some profound consequences on copyright law.

If non-humans can author copyrights, then this might open up new issues outside the animal context. For example, AI is beginning to create all kinds of material that we could think of as "copyrightable" including poems. If a monkey can be an author, why not AI? And would the current work-for-hire legal regime be enough to protect those using AI to produce work product?

These questions remain unanswered in many countries, including the US. But in others, like the UK, Ireland, and New Zealand the author of a computer-generated work is the "person by whom the arrangements necessary for the creation of the work are undertaken." Thus, assuming some human involvement, like creating the original program or introducing the AI to the materials used to generate the original work, there is a person who can claim the authorship.

It will be interesting to see how the case of "Naruto" develops, and whether it will influence how US courts view the authorship of other works where non-humans are involved in their creation.



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