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Monkey right

The controversy over who owns the rights to the world-famous selfie macaques – to her or the owner of the camera, flared up with renewed vigor.

Macaque Naruto makes selfi on David Slater's camera
Macaque Naruto makes selfi on David Slater’s camera

Naruto

In June 2011, the Zhelezberian macaque, a tufted baboon known as Naruto from the Tangkoko-Bawuangus-Dua-Saudara Nature Reserve in the vicinity of Bitunga on Sulawesi Island (Indonesia), became famous throughout the world and made famous photographer David Slater.

The monkey took several frames with the help of Slater’s camera, by pressing the shutter release button. Some of them turned out to be unsuitable, but several were successful. The photographer licensed them and subsequently published, signing as “Selfie monkeys.”

In this way, Slater launched a long-standing and non-stop discussion on copyright issues. And, if initially the question was whether the photographer can be considered the author of the famous photographs, then the dispute turned around the thesis, can Baboon Naruto have the rights to his self-portrait.

Controversy with the Wikimedia Foundation

In 2014, photographs of Naruto appeared on the Wikimedia Commons. The Wikimedia Foundation, which owns the project, has repeatedly refused to remove them at the request of Slater, claiming that the photographer can not have any rights to the pictures. According to the foundation, the self-made macaque is a public good, as a work of art created not by man.

Slater, on the contrary, claimed that he was rightfully identified as the author of the photo, since he owned an artistic idea – he intentionally left the camera so that the monkeys could play with her and thus “designed the photo”, meaning that macaques could push the shutter release button.

The photographer noted that he managed to earn only about two thousand pounds (150 thousand rubles) in the first year of publication of pictures, and after appearing on Wikipedia they no longer were interested. So, according to Slater, only for this episode he lost about 10 thousand pounds of income (770 thousand rubles).

If I were given one pound for each use of these photographs, I probably would have already had 40 million pounds [more than three billion rubles] in my pocket.

David Slater, photographer

At the end of 2014, the US Copyright Office put an end to the dispute, officially announcing that works created by animals can not be copyrighted.

The US Copyright Office will register the original copyright work, provided that the work was created by a person.

The Bureau will not register works created by nature, animals or plants.

from the resolution of the US Copyright Office

In the list of possible variants of such works, the bureau just mentioned photographs made by the monkey, pictures painted by elephants, and wooden snags that changed shape in the ocean and were smoothed out.

In its comments, the Bureau, just in case, clarified that, by analogy, it would not consider applications for the registration of works created by supernatural forces, although it could register the work “if the author in the application indicates that he was inspired by the divine spirit.”

The suit PETA

In September 2015, People for Ethical Treatment of Animals (PETA) sued Slater on behalf of Naruto’s macaques, pointing out in the statement of claim that it was the baboon who was the rightful owner of the copyright in the photograph.

The primitive scientist Antje Engelhardt acted as the next friend, a special person, usually appointed to represent the interests of children or people with developmental disabilities that could not be sued without help.

PETA required to direct all fees for the use of Naruto’s photos in favor of the monkey and her relatives in the reserve, and also expressed readiness to administer the receipt of funds. In favor of the environmental claim, the fact that the sight of monkeys, which glorified Naruto, is threatened with extinction.

During the trial, and so very unusual for American legal practice, one more circumstance emerged, which caused a new stream of jokes from the side of observers. It turned out that PETA filed a lawsuit not from that monkey. Slater described Naruto as a female macaque, and environmentalists pointed to a plaintiff of a male crested baboon.

In January 2016, District Judge William Orrick, in reviewing the case, came to the conclusion that Naruto had no right to sue and on that basis terminated the proceedings. The question is, can a monkey have copyright to the photo she created, was left unanswered.

Unusual questions for the court

Dissatisfied with the consideration of the case, PETA filed an appeal against the court’s decision. The organization’s lawyer, Jeff Kerr, said he still believes that Naruto should receive copyrights, “if possible under US law.”

Granting the rights to the image of this monkey, the court could – for the first time in history – declare the animal the owner of the property, and not the property itself.

Jeff Kerr, Lawyer

On July 12, 2017, the San Francisco Court of Appeal began hearing the merits of the complaint. Slater, embroiled in years of litigation, admitted that he was on the edge: this time he could not even afford to buy a ticket to participate in the hearing. The photographer, who still earned freelance, noted that he could not replace the broken equipment and still did not pay with the lawyer who defended him in 2015.

I’m thinking about walking dogs. I do not even have the money to pay taxes.

David Slater, photographer

The judicial session (video recording is available on the site of the court) lasted two and a half hours. During this time, the parties discussed issues that caused a lot of ironic remarks from journalists and network users.


“I take off my hat in front of PETA for keeping an unflappable appearance during the best fun of the year. At first I thought that it was all serious. ”
The meeting discussed whether PETA has a close enough relationship with Naruto to represent it in court, what value for the baboon will be given to the community of macaques written notice of copyright and what real damage the monkey will actually get if it is not recognized as a subject of copyright .

One of the judges noted that Naruto does not actually have the ability to receive and save money. Also, a monkey can not suffer reputational losses. There is no evidence that the recognition of copyright could somehow help Naruto – it does not have a bank account and tax benefits.

Another judge suggested considering how copyright, be it recognized for Naruto, could pass to the heirs of the author.

Does Naruto have such notions as law and lawlessness? Are the descendants of Naruto “children”, in the sense that it is defined by law?

Carlos Bea, referee
Commenting on the results of the meeting, Slater said that he was at a loss from the American judicial system. The only consolation, he said, was that this story helped to preserve the appearance of crested baboons from extinction. One single photo was enough to cause a powerful public response and draw attention to the problem.

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