What is Going On With The Monkey Selfie?

In mid-2014, an entertaining news story broke regarding copyright claims on some pictures of a Celebes crested macaque. In short, the picture (“monkey selfie”) was taken on equipment belonging to photographer David Slater, but the trigger for the actual photograph was pressed by the monkey itself (hence monkey selfie).

At the time, the argument was whether the photographer on whose equipment the photo was taken could claim copyright to the pictures when actually “authored” by an animal. According to Mr. Slater, he set up the equipment with the intent that the monkeys would take pictures, and thus should be granted copyright. The U.S. Copyright Office rejected this claim in 2014. His claim of copyright has been granted in Britain.

In all honesty, this part of the story isn’t very exciting to non-lawyers, as it quickly delves into the nature of authorship and other arcane intellectual property matters, as well as the differences in law between and among countries. But it did have cute pictures of monkeys, so it has value.  

This last fall, a dose of entertainment was added to this now very quiet story when People for the Ethical Treatment of Animals (PETA) filed a suit, ostensibly on behalf of the monkey, claiming that the monkey has copyright on the pictures, since they were the entities who took the pictures. PETA, of course, would collect and manage the money generated by the copyright claim, but otherwise are selflessly acting in the best interest of a macaque in Indonesia. The judge in the case has already stated that copyright law does not extend its protections to animals.

Other than ruining the fun for everyone not involved, the judge’s declaration about animal copyright illustrates a good point about the law: American law is intended to extend protections to humans, unless otherwise stated. There are few instances under federal law where animals are given standing to file a suit to protect their interests.

More common is protection extended to legal entities like corporations, LLCs and trusts. In fact, I would estimate that the legal trend is actually in the opposite direction, where corporations are assumed to be included unless specifically excluded. This is most recently seen in the area of campaign finance and contributions, where the Supreme Court in Citizens United essentially gave corporations absolute First Amendment rights when applied to that realm.

In both the monkey selfie matter and campaign finance, it is incumbent on Congress to establish law (or constitutional amendment) that extends or limits the protection of laws to non-human entities. I have already discussed why it is difficult to make those changes, and that is only compounded when considering a constitutional amendment, or changing a law to favor a very small (and unwealthy) constituency.

In the end, for now, the monkey selfie belongs to all of us.