The monkey-selfie and copyright

“Selfies” (the official Oxford word for 2013) have become such a phenomenon that a recent hoax, claiming that the American Psychiatric Association classified an addiction to “selfies” as a mental disorder called Selfitis, went viral. Whether “selfies” are narcissistic or a basic desire to feel noticed, appreciated or recognised, this phenomenon has now also extended to the animal kingdom to the extent that a Crested Macaque monkey is involved in litigation regarding his copyright in his “selfie”.

On 21 September 2015, animal rights activists and non-profit charity, People for the Ethical Treatment of Animals (PETA), filed a complaint of copyright infringement against David John Slater, a wildlife photographer and sole director of Wildlife Personalities Limited, on behalf of Naruto, a 6-year old male member of the Macaca nigra species.

This complaint followed on Slater’s visit to the Tangkoko Reserve on the island of Sulawesi, Indonesia in 2011. He wanted to take photographs of the Macaque monkeys in their natural habitat and left his camera, positioned on a tri-pod, unattended for a moment when Naruto took a couple of “selfies” when fidgeting with the camera. One of these “selfies” has since gained international fame as the much recognised “Monkey Selfie” and in 2014 was published by Slater’s Wildlife Personalities in a book in which Slater and Wildlife Personalities are identified as the copyright owners of the monkey “selfies”.

PETA, on behalf of Naruto, argues that Naruto is the lawful copyright owner of the disputed “selfies” because the “selfies” resulted “…from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto.” and seeks an order permitting PETA to administer and protect Naruto’s rights in the “Monkey Selfie”, on condition that all proceeds are used to the benefit of Naruto and his family.

Although any claims of authorship by species other than humans are novel under the United States Copyright Act 17 U.S.C. § 101 et seq., PETA is arguing that this section is sufficiently broad enough “…to permit the protections of law to extend to any original work, including those created by Naruto.

PETA base their argument on allegations that macaque monkeys are highly intelligent, capable of advance reasoning and learning from experience, that they have stereoscopic vision with depth perception and are vision dominant. Like humans these monkey apparently also have opposable thumbs with the ability to move their fingers independently. Naruto, was further allegedly accustomed to observing cameras being handled by humans to the extent that he understood the relationship between pressing the shutter release and the change to his reflection in the camera lens. In summary: Naruto seems to have known exactly what he was doing. Therefore, PETA opines, Naruto voluntarily and purposefully authored the original “Monkey Selfie” and must his copyright be protected from Slater’s exploitation thereof and false claims of copyright ownership.

However, not everyone supports PETA’s view. The Wikimedia website where the “Monkey Selfie” is available for download specifically states that:

This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”

This echoes the US Copyrights Office’s (USCO) 3rd edition of their Compendium of US Copyright Office Practice, updated in the aftermath of the monkey “selfie” debacle stating that:

“…an animal, ghost or divine being cannot hold copyright over a picture.”

Copyright protection for human authors, to the exclusion of non-human authors seems to be the norm rather than the exception in most countries. Although merely non-binding guidelines, the said USA compendium clearly states that works that lack human authorship are not copyrightable. The United Kingdom is less clear in holding the view that a product cannot be the result of a fluke, but must be the result of a conscious mind and if a photographer made a large contribution to the making of the creative work, courts must makes the final decision regarding authorship and copyright. Germany’s Copyright Act (UrhG) No.5 Section 2 and 72 determines that works must owe their origin to a human being for it to be copyrightable and must adhere to a certain threshold of originality. Although Indian laws stipulate that copyright vests with the author of the work (unless the work was created by an employee or on commission) and further specifically stipulates that animals cannot be considered as legal persons to claim ownership.

In terms of the South African Copyright Act 98 of 1978 an author of an artistic work, which includes photographs:

…means the person who is responsible for the composition of the photograph;”

Further, in terms of Section 3(1) of the Copyright Act copyright shall only be conferred in a work eligible for copyright if the author thereof is at the time of the making of the work a qualified person, which is defined as

…in the case of an individual, a person who is a South African citizen or is domiciled or resident in the Republic;”

“Person” is unfortunately not defined in the Copyright Act, but according to the Oxford Advanced Learner’s Dictionary a person is “A human being regarded as an individual”.

Subsequently, even if Neruto was permanently residing in South Africa, as an animal, he will never be regarded as a qualified person in terms of the South African Copyright Act, which is a statutory requirement for copyright to vest in an author.

In conclusion: in South Africa the copyright in all monkey “selfies” and “elfies”, as the Elephant “selfie” that was taken by a hungry elephant in Koh Phangan with a GoPro camera which he mistaken for food is known, will not vest in Mr monkey and his creative partners, but will in all probability, as stipulated by Wikimedia, fall in the public domain.

by

Marietjie Botes
marietjie@dyason.co.za