Monkey See, Monkey Sue Doesn’t Fly Under U.S. Copyright Law

In August 2014, we posted about a copyright ownership dispute involving selfie photographs. The disputed selfie photographs were taken by a monkey named Naruto in Indonesia in 2011. The photography equipment used to take these internationally famous “monkey selfies” belonged to famed wildlife photographer David Slater. At the time, Slater claimed copyright ownership because he owned the camera with which the “monkey selfies” were taken. In contrast, Wikimedia, having posted the photographs on Wikipedia, claimed the photographs were part of the public domain because U.S. copyright law recognized ownership of copyright in works produced only by human authorship.

In December 2014, the U.S. Copyright Office published a revised edition of the Compendium of U.S. Copyright Office Practices, a resource on institutional practices and related principles of U.S. copyright law. In it, it states “the Office will not register works produced by nature, animals, or plants… [or] a work purportedly created by divine or supernatural beings.” The Compendium includes specific examples of work not eligible for copyright protection. The first example: a photograph taken by a monkey.

In September 2015, the People for the Ethical Treatment of Animals, Inc. (“PETA”) filed a copyright infringement complaint in the U.S. District Court for the Northern District of California against Slater, on behalf of Naruto, asking the court to declare Naruto to be the author and copyright owner of the “monkey selfies” and to hold that all proceeds from the sale, licensing, and commercial use be used solely for the benefit of Naruto. PETA contended that since the photo(s) “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Slater,” Naruto was the author. PETA noted the author is typically “the person who sets up and snaps the shutter,” to which Slater’s attorneys responded that “setting up what became a world-famous, award-winning photograph is what professional nature photographer Defendant David Slater did.”

On January 28, 2016, following U.S District Judge William Orrick’s bench ruling earlier in the month, Judge Orrick issued a written Order granted defendants’ motion to dismiss. Citing to earlier precedent, the court noted that if Congress and the President intended to authorize animals to have standing to sue, they had the power to do so and, thus far, they had not done so. Accordingly, Judge Orrick held that under the current Copyright Act and consistent with the Compendium, animals cannot own a copyright and therefore Naruto is not an “author” within the meaning of the Copyright Act.

Whether U.S. law will ever be changed to allow copyright ownership by non-human “authors” of any type remains to be seen.

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