Nonhuman copyright ownership issues are swamped by a jungle of legal oddities.
There’s no case law that suggests a monkey has standing to bring a lawsuit — but that could soon change, as the 9th Circuit considers arguments over a “selfie” of an Indonesian crested macaque named Naruto.
Before looking at the big picture, let’s consider the framing: wildlife photographer David Slater set up his camera in an Indonesian forest in 2011 and Naruto allegedly snapped a self-portrait. Slater included the viral photo in a book of images called Wildlife Personalities. Under U.S. copyright law, the author of a photo — typically whoever pressed the shutter — owns the rights to it. PETA says just because Naruto isn’t human doesn’t mean he isn’t an author and sued Slater for copyright infringement on the monkey’s behalf.
Antje Engelhardt, a U.K.-based primatologist familiar with Naruto, stepped in to serve as his “next friend” — a status usually used to support children and people with developmental disabilities who would be unable to sue without the assistance of someone close to them. She’s been studying macaques since the mid-1990s and says she’s known Naruto since his birth in 2008. Engelhardt decided to join the suit after being approached by PETA because she understood, if the organization won and Naruto owned the copyright, it would ensure any proceeds from the monkey selfie were used to protect his species — which is endangered and at risk of extinction.
In January 2016, U.S. District Judge William Orrick found Naruto lacked standing to sue, but didn’t reach the issue of whether or not an animal could own a copyright. PETA appealed, arguing that the U.S. Copyright Act doesn’t expressly require human ownership and that this matter could impact future cases involving works created by artificial intelligence. Slater fired back arguing that it’s clear Naruto lacks standing — and says PETA no longer has standing either because Engelhardt dropped out of the case, a decision she says she didn’t make lightly. She explained her reasoning in detail over several months of correspondence with The Hollywood Reporter, but that’s a story for another day. In short, she felt she wasn’t being taken seriously as a scientific expert and that PETA was using Naruto for self-promotion.
“I still fully believe that Naruto should receive copyright, should that be possible by U.S. law,” Engelhardt told THR. “I have always felt that one of my duties as Naruto’s Next Friend was to ensure that he/his case does not get exploited for other purposes than getting him the copyright.”
PETA general counsel Jeff Kerr wouldn’t comment on her decision to withdraw when THR reached out in October. Instead, he sent a statement about the case itself through a PETA media liaison.
“Naruto remains the plaintiff, and PETA is serving as his next friend, which is sufficient for the case,” said Kerr in an Oct. 14 statement. “Until recently, humans had no idea that monkeys are intelligent problem-solvers who use language and have the ability to learn, maintain complex relationships, and sometimes even outsmart us — and human understanding of monkeys continues to evolve. In this case, Naruto the macaque — who has been accustomed to cameras throughout his life — intentionally picked up a camera, watched his reflection in the lens and made various faces while continually pressing the shutter button, which resulted in many photos. By granting ownership of the images to this monkey, the court could — for the first time in history — declare an animal the owner of property rather than a piece of property himself.”
Whether PETA is fit to serve as Naruto’s next friend is a key legal issue, but it’s hardly the most interesting facet of the case now — as a personal dispute between Engelhardt and Kerr has been brought to the 9th Circuit’s attention.
After stepping down, Engelhardt wanted to speak with Kerr but says he wouldn’t respond to calls or emails. So, she messaged him saying she would stop by his home, where she understood he often works, while she was in the U.S. on other business. When she arrived April 22, Kerr called the cops. Engelhardt was arrested, and the police report cites ringing the doorbell, walking into the backyard and communicating “in a manner likely to cause annoyance or alarm, specifically by sending a text message stating that she was gonna stop by the victim’s residence at an know time and date.”
Slater’s attorney Andrew Dhuey in May filed a request for judicial notice of the matter, writing “Regardless of the merits or outcome of the criminal case against Dr. Engelhardt, its very existence is a relevant consideration on whether PETA can adequately represent the interests of Naruto, notwithstanding the documented animosity that has developed between PETA and Dr. Engelhardt.”
PETA’s outside counsel David Schwartz filed an opposition, arguing the “unauthenticated” complaint has nothing to do with the copyright dispute and doesn’t involve any of the current parties to the appeal. “This Motion isn’t Slater’s first attempt to smuggle irrelevant or disputed factual allegations into the appellate record,” he writes. “The Court may or may not be sufficiently ‘curious’ so as to take up Slater’s invitation to visit his website in order to learn the ‘true story’ of how he made ‘critical artistic decisions’ ‘in the course of several grueling days in an Indonesian jungle,’ which ‘resulted in a photographic work adored by millions worldwide.’ Curiosity is not a proxy for relevance.”
Dhuey didn’t pull any punches in his reply.
“How can PETA, having alleged no relationship with Naruto, be a suitable ‘next friend’ for him when PETA’s relationship with the primatologist who does allege a lifelong relationship with him has soured to the point that PETA’s general counsel had her arrested for criminal trespass and harassment?” he writes, adding that it’s PETA’s burden to show it is a suitable next friend despite the animosity, not Slater’s to prove it isn’t fit.
Oral arguments before the 9th Circuit begin at 9 a.m. Wednesday, and can be streamed live here. Naruto v. Slater is the fourth item on the calendar. Each side is tentatively given 15 minutes to argue the appeal, and it remains to be seen how much of that time, if any, will be dedicated to the incident.