Friday, July 14, 2017

Monkey Selfie Sued Photographer for Copyright. Legal Arguments.

Federal appeals court is about to decide whether animals can own the copyright to their selfies.  On Wednesday, the 9th US Circuit Court of Appeals heard a case that involves a monkey who grabbed photographer’s camera and snapped some selfies. Aminal rights group PETA brought a lawsuit claiming that the monkey, not the photographer, owns copyright to the resulting viral photos. Here is what happened.

In 2011, British nature photographer David Slater photographer a group of macaques in Indonesia. One of them grabbed a remote and started clicking it. Camera on a tripod shot hundreds of photos, some of which became viral because of how hilarious they are and how unique the story is.

But PETA sued the photographer on behalf of the monkey named Naruto who apparently had the remote. PETA alleges that the monkey Naruto owns copyright.

Who holds copyright to photos?

Here is what U.S. copyright law states. Copyright belongs to the “creator” of the work who fixed it in any tangible medium. In case of photographs, copyright normally belongs to the one who clicked the shutter, unless the clicker was hired for “work for hire” or otherwise transferred the copyright. It is irrelevant who owns the camera.  Photographer Slater did not hire the monkey and it did not assign any copyrights to him. U.S. copyright law did not specify that the “creator” must be human. It was, thus, possible that the monkey could hold copyright. But even if it didn't, then the photos would still not belong to photographer Slater because he was not the one who fixed the photo in a tangible media. He did not click the shutter. If neither the photographer nor the monkey could claim copyright, that would mean the photos would fall in a public domain. That's why Wikimedia published the monkey selfie photos claiming that they were in a public domain.

What is the status of the case?

So, PETA filed this case that could potentially become landmark as the first case to assign copyright to an animal.  The case is not finalized but, so far, PETA has been losing. It lost at the lower level of court last year, when a federal judge ruled that the monkey didn't own the copyright to the photos. On Wednesday, a three-judge panel in San Francisco was pretty hostile to the monkey representative. Judges asked, why should PETA represent the monkey's interests? Normally, when copyright “creator” is unable to assert own interests, then the “next friend” is eligible to bring a lawsuit. Monkey’s next friend was not PETA. It was primatologist Antje Engelhardt, who worked with Naruto and his fellow crested macaques for years.

PETA's general interest in the well-being of animals is insufficient to qualify it as “next friend” because there is case law in this district that general interest is not enough to be called “next friend.” It must be a specific actual friend.

Photographer also argued that it was not even the correct monkey plaintiff. PETA identified a male named Naruto, but the photographer says it's a female named Ella.

Judges continued grilling plaintiff monkey’s lawyer with questions about how Naruto has been injured by photographer when there was no benefit to the monkey to hold the copyright in the first place. It would not allow Naruto to get any money, there was no loss to monkey’s reputation. Judges asked if plaintiff’s children and spouse could potentially claim copyrights, as prescribed under the Copyright Act.

Were Naruto to have a copyright in the photo, he would also have to provide written notice under the statute to other Indonesian monkeys who also claim an interest in the selfies. She used this as an opportunity to point out that there is a dispute as to whether PETA has accurately identified the monkey in the photo. They say it's a male named Naruto, but Slater says it's a female named Ella.

Appeal judges are yet to make a decision in a final case. Meanwhile, the photographer claims that the prolonged legal battle has made him so broke he can't even pay the income tax.