Macaque takes a selfie: PETA publicity stunt or genuine animal rights issue?

Macaque takes a selfie: PETA publicity stunt or genuine animal rights issue?

Jay Patel*

Copyright protections can be sought for “original works of authorship fixed in any tangible medium of expression,” which includes any “pictorial, graphic, and sculptural works.”  17 U.S.C. § 102 (2012).  Over 100 years ago, the Supreme Court ruled that an original photograph that represented the “intellectual conception of its author” could be afforded copyright protection.  Burrow-Giles Lithographic Co., v. Sarony, 111 U.S. 53, 59 (1884).  Our Nation’s copyright protections have evolved to include any original arrangement and selection that exhibits creativity.  Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358 (1991).  This is particularly relevant today when many authors compile facts and ideas in their own creative ways to sell things such as textbooks and phonebooks.  Id. 

But who can be considered an “author” in regards to the “authorship” in the copyright statutes?  In 2011, a macaque from Indonesia took pictures of itself using a camera set up by photographer David Slater.  Complaint for Copyright Infringement, Naruto v. Slater, No. 15-cv-4324 (N.D. Cal. Sept. 21, 2015).  Slater subsequently applied for copyright protection on the pictures, which the U.S. Copyright Office denied, stating that the photographs could not be protected, because they were works produced by an animal.  Abby Phillip, Regulators: No One Can Copyright Animal Selfies, Not Even Monkeys, Wash. Post (Aug. 21, 2014), https://www.washington  In the third edition of the Compendium of U.S. Copyright Office Practices, the authorship requirement is explicitly defined to only include works by human beings.  U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2014),  Since neither Slater nor the macaque could get the copyright, the pictures were considered to enter the public domain, which means that they could be used by anyone for free.  Victor Li, Monkey Selfies Do Not Qualify For Copyright Protection, US Regulators Say, A.B.A. J. (Aug. 22, 2014), 

Since Slater could not own the copyright to the individual pictures, he created a nature book in which he compiled and arranged his pictures.  Complaint for Copyright Infringement at 5.  However, People for the Ethical Treatment of Animals (PETA) recently brought a lawsuit, on behalf of the macaque, against Slater, his company, and a publishing company he worked with to release the book.  Id.  PETA alleged that the actions of Slater and the companies infringed the copyrights of Naruto, the macaque in the monkey selfie pictures.  Id.  PETA is challenging the U.S. Copyright Office rules that explicitly set out the human authorship requirement.  PETA says it is bringing the lawsuit on behalf of Naruto because of his “inaccessibility and incapacity,” Complaint for Copyright Infringement at 3, relying on rule 17(c)(2) of the Federal Rules of Civil Procedure, which allows a representative to bring a lawsuit on behalf of a “minor or an incompetent person.”  PETA also alleges that their organization is the most likely to be appointed by the Court over other animal rights organizations.  Id.

If the macaque is found to have copyright protections, then it would be the first time an animal would own property, instead of being considered property.  But the issues of this lawsuit go beyond mere copyright issues.  The court will also have to address issues of animal rights and how we define them in the United States.  Why would a monkey be deemed copyrights, when a chicken or a cow could be slaughtered for food?  When dealing with animal rights, there is a spectrum.  We put criminal penalties for the harm of any endangered species and domestic animals, but reward farmers with subsidies for the slaughter of farmed animals.  See Md. Code Ann., Crim. Law §10-604 (2013); see also Md. Code Ann., Fam. Law § 4-501 (2013).  For some it might be hard to understand why different animals are treated different ways in the eyes of the law.  It is acceptable to kill a chicken for food, but it would be illegal to kill a dog for the same reason.  Hunting in the woods and fishing in certain rivers is permitted but there are restrictions on the type of animal you hunt or fish.  Md. Code Ann., Crim. Law §10-603.  Going beyond the existing definitions of what is considered an animal in most states might only need to be considered if legislatures change the laws regarding animal rights.

Expanding animal rights to include ownership would create a slippery slope to other subject matter, such as autonomous computers.  Artificial intelligence is given the same protection as animals.  Robots and animals are not personally liable for the harm they cause; the liability is on the owner of the robot or animal and even the manufacturer of the robot.  Richard Acello, Robot Rules, A.B.A J. (May 1, 2010), /article/robot_rules.  If the liability cannot be placed on the robots or animals, the plaintiff would have to name everyone involved with the robots or animals.  Id.  If they are not culpable, then what good is the assertion of certain property rights by them? 

Regardless of how PETA thinks animals should be treated, the court must first find jurisdiction to hear the case, before reaching any consideration on substantive issues of animal rights.  The first hurdle for PETA is convincing the United States District Court for the Northern District of California that jurisdiction is proper for a Virginia corporation, PETA, to bring suit in California on behalf of a macaque located in Indonesia, against a resident of the United Kingdom, Slater, a United Kingdom corporation, and a Delaware corporation, regarding actions that took place in Indonesia and by way of interstate commerce via the internet infringed the copyright laws of the United States.

*Jay Patel serves as a staff editor of Law Review and as treasurer of Intellectual Property Law Society. He has a degree in bioengineering and is currently concentrating in business law and intellectual property.

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