This story began on the Indonesian island of Sulawesi six years ago, and reached its climax in San Francisco just this Monday. Is is a happy ending? Maybe, but not entirely.
Way back in 2011 British wildlife photographer David Slater set off to spend a few days trailing and photographing a troop of macaques. According to the popular version of the story, David left his camera unattended for a time, and Naruto, a 6 year old male macaque known to conservationists, seized his chance. He fancied trying out his own pictorial skills – with famous results. Who hasn’t seen that wonderful toothy-grinned selfie?
Slater’s version of events is markedly different. He claims that after failing to get the monkeys to keep their eyes open in close ups, he’d spent some time coaxing them into pressing the shutter on his camera themselves. “It wasn’t serendipitous monkey behavior. It required a lot of knowledge on my behalf, a lot of perseverance, sweat and anguish, and all that stuff.”
Whichever is the truth, a collection of David’s photos including Naruto’s selfie was published in a book by a San Francisco publishing company, Blurb Inc, and the selfie went viral.
And that’s when the trouble started. In 2014, Slater took action against Wiki to stop them using the selfie without permission. Wiki refused claiming that as the monkey was the creator of the image, the photo was uncopyrightable. The impenetrable legal wrangling dragged on, and then in the autumn of 2015, PETA declaring itself Naruto’s legal representative, filed its own suit against Slater in an attempt to claim the monkey’s ownership of the selfie’s copyright. PETA’s argument was that US copyright law did not exclude nonhuman animals.
If PETA’s claim could be upheld, it might open up a significant pathway towards the holy grail: rights for nonhuman animals. But the judge turned the argument around, ruling that nonhuman animals were not covered by the Copyright Act.
Naturally PETA appealed and just last week oral arguments were heard in San Francisco’s ninth circuit court of appeals. Some interesting points of law were raised:
- Whether Peta has a close enough relationship to Naruto to represent him in court
- The value of providing written notice of a copyright claim to a community of macaques
- And whether Naruto is actually harmed by not being recognized as a copyright-holder
“There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto,” said Judge N Randy Smith. “What financial benefits apply to him? There’s nothing.”
At one point, Judge Carlos Bea considered the question of how copyright passes to an author’s heirs: “In the world of Naruto, is there legitimacy and illegitimacy? Are Naruto’s offspring ‘children’, as defined by the statute?”
Slater’s publisher, also a defendant, even questioned whether Peta had identified the right monkey. “I know for a fact that [the monkey in the photograph] is a female and it’s the wrong age,” their lawyer said. “I’m bewildered at the American court system. Surely it matters that the right monkey is suing me.”
So, to cut a long story short, Naruto’s case was finally settled out of court. It was agreed that Mr Slater should retain 75% of any future revenues from the images while the other 25% be donated to charities protecting crested macaques in Indonesia.
A good result? The protracted legal wrangling over Naruto’s selfie has ruined David Slater. He could not even afford the flight to San Francisco to be present at the appeal, or pay his lawyer. “Every photographer dreams of a photograph like this,” Slater said “If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I’m not.” Instead he is struggling to get by, so much so he is “seriously on the verge of packing it all in”.
And PETA has had no success, as was hoped, in moving the Animal Rights agenda forward. That is incredibly disappointing.
The one good that we can take from the story – consolation for both parties – is that it’s thrown the spotlight on these endangered macaques. “These animals were on the way out and because of one photograph, it’s hopefully going to create enough ecotourism to make the locals realize that there’s a good reason to keep these monkeys alive,” Slater said. “The picture hopefully contributed to saving the species. That was the original intention all along.”