Simian Selfies: Copyright Competition

He took the photo, but who has the copyright?

This is a simple story: a photogenic monkey took a selfie.

Naruta, a rare crested macaque, lives in a reserve in Sulawesi, Indonesia. A British wildlife photographer, David Slater, spent three days getting familiar with the animals and taking pictures of them.

Then, one day, Slater left a camera near the macaques. On purpose. On a tripod, with a shutter trigger. The inquisitive creatures just couldn’t resist the fascinating machine. Its shutter clicked, the lens made reflections. There was even a flashgun. The macaques took lots of pictures. Some of them were good.

Panda Photo, Bert Hardy, 1938
Panda Photo, Bert Hardy, 1938

When he saw the photos, Slater thought he, Slater, was the photographer and owned the copyright, and so he should get the revenue from selling the images to magazines, advertisers and other markets. Others, especially the animal rights organization Peta (People for the Ethical Treatment of Animals), felt differently and hired lawyers on Naruta’s behalf. Peta argued that Slater did not actually ‘take’ the photo, Naruta did, and so he deserves the credit.

Copyright is a way to protect property, and we can “own” our ideas through copyright. Slater takes a picture, for example. He has the idea, the set-up, the equipment, so he has the copyright. What if someone, or something, else takes the picture? Who’s the photographer?

Unfortunately, in law, Naruta is not human and so can not hold legal copyright, nor could he benefit from his work.

Not surprisingly, humans long ago made laws that non-humans, like Naruta, could not have copyrights.

But, this time, a legal conflict followed.

Did the human with the camera deserve full copyright for a photo an animal had taken? Do animals deserve copyright, or any benefit at all, for what they do?

The human photographer here claimed copyright, something animals are not allowed to hold under any circumstances. It seems ironic that Slater can use the endangered remains of Naruta’s land to earn profit from photos of the species?

The American judge hearing Naruta’s initial court case stated the standard protective human position very clearly. If “congress and the president intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue [for breach of copyright], they could, and should, have said so plainly.”[25][26]

If you’re not a person you can’t have any copyright. You can’t share it, not even with a human. You can take your own picture of yourself but get nothing out of it. The human photographer received “a few thousand pounds” for Naruto’s selfies before the trial.

There is nothing novel about Naruto’s plight. Many creatures have been excluded from copyright and its benefits. Before 1882 (Married Women’s Property Act) English women were required to grant their property to their husband. The copyright of a female writer, or photographer, became his by law. This system was all too common across cultures. People—women, First Nations, Chinese, and other ethnic and/or cultural groups–were denied copyright, and even suffrage, in a secure (male) political system.

In Naruta’s case, finally, David Slater, the human photographer, agreed to contribute 25% of any future income to charities which protect wildlife for simians like Naruto. This avoided any legal reconsideration of the nature of copyright. Slater was not legally required to donate 25%, but the case was about to be appealed in court by Naruto’s lawyers. Perhaps, too, public opinion was increasingly adopting Naruto’s position.

Unfortunately, for the future of animals’ rights and benefits, this case did not legally resolve matters. It was a ‘settlement’ they reached, not an obligation by law.

Were animals—not just Naruto—better off? Peta and photographer David Slater made a joint statement that the case “raises important, cutting-edge issues about expanding legal rights for non-human animals, a goal that they both support, and they will continue their respective work to achieve this goal,”

This is a promising shared statement, but it’s only a promise. The “expanding legal rights for non-human animals” are yet to come.

What are the ‘legal rights’ that would matter most to animals? Perhaps a place they can survive. A safe environment without toxic poisons, without danger, with a secure food source. Copyright is probably not the right term for these. There’s a different right that addresses these needs and revises the relationship between humans and animals.

 

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