Monkey Selfie Settlement

September 21, 2017

In 2015, People for the Ethical Treatment of Animals (PETA) filed an action in the Northern District of California against David Slater. The action was filed on behalf of a monkey named Naruto. Naruto took a series of photographs using Slater’s camera, which Slater later reproduced and sold as his own original work.  PETA filed this action claiming that Naruto, the monkey, should own the copyright on his work.

The allegation of the complaint stated that Naruto is a crested macaque monkey.  He resides in Indonesia and his species is claimed to be highly intelligent and also endangered.  Naruto was being monitored by Dr Engelhardt, a primatologist, since his birth.  Dr. Engelhardt, working together with PETA, sought to ensure the proceeds from the famous photo were used to protect Naruto and the other endangered crested macaques in his habitat. Slater is a professional wildlife photographer.  Sometime in 2011, Slater left a camera that he owned unattended and during that time Naruto allegedly took the photograph that is at the center of the litigation (shown below).  According to the complaint, Slater did not assist Naruto in taking the photograph but has reproduced the photograph, claimed the work as his own and profited from it.

In 2015, a motion to dismiss for lack of subject of matter jurisdiction, lack of standing, and failure to plead a copyright infringement claim was filed.  The motion argued that the United States Constitution and the Copyright Act contemplate protections only for humans.  Beyond the obvious argument that these protections are not afforded to animals, Slater further argued that the monkey that took the photo was a female,  while Naruto is a male, contradicting the allegation that Naruto took the photo of himself.  And even if Naruto did take the photo, he lacks standing because there is no injury. The allegation that Naruto is being denied the right to control this work for the purposes of reproduction, distribution, sale, etc is “nonsensical”.  A monkey does not have the ability to control any of these things. The motion to dismiss was granted by Judge William Orrick, in the Northern District of California

PETA appealed the dismissal in March 2016, to the Ninth Circuit in San Francisco, CA, and after nearly 18 months of filings and oral arguments, the parties have finally reached a settlement.  The action by PETA, on behalf of Naruto, will be dismissed per a joint motion filed on September 11, 2017.  Slater has agreed to donate 25% of his future revenue derived from the photograph of Naruto to registered charities dedicated to the protection of Naruto and crested macaque monkey habitats in Indonesia. Estimates of how much the photograph may be worth are not available. The parties issued a joint statement: “PETA and David Slater agree that this case raises important, cutting-edge issues about expanding legal rights for nonhuman animals, a goal that they both support, and they will continue their respective work to achieve this goal.”

Photo Credit: David Slater via Wikimedia Commons

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