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Can a monkey own copyright? The US court of appeal decides.

By Chris J Holland, on 27 April 2018

The IPKAT website (and various newspapers) have reported the latest (and final?) stage of the legal disputes surrounding the “Monkey selfie” case. In 2014 the photographer, David Slater started an action against Wikimedia for copyright infringement following online usage without permission of the photograph of a crested macaque. The macaque had “operated” the camera set-up by Mr Slater and taken an impressive selfie. Mr Slater claimed ownership of copyright in the photograph (he had painstakingly set up his camera in a manner which made the selfie possible).  Wikimedia successfully disputed whether a photograph taken by a monkey could be protected by copyright in the first place.

Subsequently PETA, an animal rights organisation, started a separate action claiming to represent as (“next friend” in US legal terms) the interests of the monkey in question, identified as “Naruto”. PETA (on behalf of Naruto) challenged the right of the wildlife photographer to exploit the celebrated monkey selfie, given that Naruto and not Mr Slater took the photograph and was therefore the rightful owner of the copyright. The district court having dismissed the claim, PETA launched an appeal, but David Slater and PETA settled out of court in 2017. Nevertheless the appeal process went ahead and the Opinion in Naruto v. Slater has been issued by the Court of Appeals for the 9th circuit. Read also the full report from the IPKAT website.

The claim by PETA was dismissed:  “Nonetheless, we conclude that this monkey – and all animals, since they are not humans – lacks statutory standing under the Copyright Act”  Opinion of the court, page 4 (Circuit Judge Bea). The court side-stepped, perhaps wisely any practical issues about the precise identity of “Naruto” as distinct from any other crested macaque of similar appearance in the same location. Would the monkey-selfie pass the originality test under EU copyright law to qualify for copyright protection? Answers on a postcard…

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