Myers Berstein
Toll Free Communication

Monkey's selfie case is a lesson in copyright law

macaque monkey with cellphone.jpeg

The story sounds a bit like the beginning of a joke: A photographer goes into the jungle. A monkey grabs his camera and takes a selfie. Who owns the rights to the photo?

The funny -- not funny -- thing is that this is no joke. In 2011, freelance photographer David Slater traveled to Indonesia to photograph macaque monkeys. After coaxing some of the monkeys into taking photos of themselves, Slater copyrighted his favorite photo and published it in a book.

Why the photographer was sued by PETA

The photo of the male macaque monkey named Naruto became an instant success on the internet and, despite Slater's copyright, the photo was widely distributed without giving Slater credit or royalties. To make matters worse, People for the Ethical Treatment of Animals (PETA) sued Slater on behalf of the monkey claiming that Naruto was the true owner of the selfie copyright.

A California federal district court judge decided that the monkey did not have the right to sue, and PETA appealed that decision. A three-judge panel with the U.S. 9th Circuit Court of Appeals heard the case in July, and a decision is pending.

Proving losses in a copyright case

As with all copyright infringement cases, the party alleging that copyrighted material has been illegally used must prove certain elements of the claim including:

  • Ownership of the copyright
  • Wrongful use of the copyrighted material by another

Since PETA is alleging that Slater used Naruto's selfie illegally, it must show that the monkey rightfully owned a copyright and that Slater was wrong to use it. Copyright law protects the creative process of converting an "original mental concept" into "visual form." Was teaching the macaque monkeys how to take selfies an "original mental concept" that became the "visual form" of the photo? The court will decide.

There are a number of legal concepts and issues working against PETA in this case that have little to do with copyright law. However, regardless of the decision by the Court of Appeals, Slater feels he has lost too much time and energy because of this case, and is even questioning his choice of career.

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