Can a monkey own the copyright to a famous series of selfies he took of himself in an Indonesian jungle?
David Schwarz, a lawyer for the animal rights group People for the Ethical Treatment of Animals, told a federal appeals court in San Francisco Wednesday that the answer is yes.
Schwarz told a three-judge panel of the 9th U.S. Circuit Court of Appeals:
“The definition of an author depends on whether there has been a modicum of creativity.”
He argued that federal copyright law doesn’t restrict authorship to people and allows “non-human entities” such as corporations to own copyrights.
PETA is seeking copyright protection for a crested macaque named Naruto for photos Naruto took of himself in 2011 in a rainforest reserve on the island of Sulawesi in Indonesia.
The group claims that Naruto, who had seen tourists taking photos, showed creative authorship by taking the selfies with “purposeful and voluntary” actions with a camera left in the reserve by a British nature photographer, David Slater.
Slater published the photos in 2014 in a book he created with software from San Francisco-based Blurb.
He claims he was the author of the photos because he made “critical artistic decisions” in choosing the camera settings. He also contends animals can’t own copyrights.
PETA sued Slater and Blurb in federal court in San Francisco in 2015. It appealed to the 9th U.S. Circuit Court of Appeals after U.S. District Judge William Orrick dismissed the case last year on the ground that federal copyright law does not explicitly allow animals to sue.
A three-judge panel of the appeals court took the case under submission after hearing arguments in its San Francisco courthouse and will issue a written ruling at a later date.
Two members of the panel, Circuit Judges Carlos Bea and N.R. Smith, seemed concerned with a threshold issue of whether PETA qualifies as a legal “next friend” to sue on behalf of Naruto.
Bea began questioning Schwarz about that issue as soon as the hearing began, noting that the U.S. Supreme Court has required that a next friend must have a “significant relationship” with a plaintiff.
Angela Dunning, representing Blurb, argued that PETA didn’t have a relationship with the individual monkey, but instead “seized on the case as an opportunity” to publicize its animal rights goals:
“This case is brought as a means of spreading a policy issue that is important to PETA. … Naruto is safely ensconced in a reserve in Indonesia, blissfully unaware that this is happening.”
The lawsuit originally included a primatologist, Antje Engelhardt, who had personally studied Naruto, as a legal next friend, but she dropped out of the case during the appeal.
Schwarz told the judges that if they questioned PETA’s relationship with the monkey, they should send the case back to the trial court for more proceedings on that issue.
Crested macaques are part of the monkey family and have been listed as a critically endangered species by the International Union for Conservation of Nature.
PETA has said that if it wins copyright ownership for Naruto, any income from sales of the selfies would be devoted to preservation of Naruto, other crested macaques and their habitat.