A few years ago, a crested black macaque named Naruto apparently took a selfie using a wildlife photographer’s camera. The photographer, David Slater, wishing to get better close-up photos of a group of macaques in Indonesia, set up his camera on a tripod and attached a cable and button that when pressed would trigger the camera shutter. He hoped that the monkeys would be curious enough to move closer to the camera, stare at their reflection in the lens, and press the button.

In fact, the macaques were quite cooperative, especially Naruto, who snapped several selfies. One of the photos was particularly eye catching—mainly because of the self-aware and somewhat goofy expression on Naruto’s face. Slater sent the photo along with some others to his agent who shared them with various news outlets. The photo went viral.

Then something really crazy happened.

Wikipedia Claims Monkey Image Is in the Public Domain

Wikipedia, the online encyclopedia, used the photo of Naruto grinning at the camera, to illustrate an article about the Celebes crested macaque (aka crested black macaque). However, Slater is not attributed as the creator and copyright holder. Instead, the description of the photo on Wikimedia says, “Self-portrait of a female Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia, who had picked up photographer David Slater’s camera and photographed herself with it.” Wikipedia claims that the image is in the public domain because the macaque who snapped the photo is a “non-human” creator”, i.e., not a legal person.

Slater, on the other hand, believes that the photo resulted from his creative choices (choosing the macaque group, setting the camera on a tripod, adjusting the camera settings for the desired image, adding the remote trigger, etc.), thus making him the rightful copyright holder. Some legal experts (in the UK where Slater lives) think that his actions are more important than “the mere physical act of pressing a button” in deciding who has copyright ownership.

In spite of Slater’s objections, Wikipedia refused to take down the photo of Naruto. I’m not reproducing the photo of Naruto here because I think Slater is the rightful owner, and I don’t have permission to use it (I tried to contact him to get permission, but never got a reply). You can see the image at Slater’s website.

But there’s more to the Naruto story.

PETA Sues for Copyright Infringement

In 2015, PETA (People for the Ethical Treatment of Animals) entered the fray by suing Slater for copyright infringement in a California court on behalf of Naruto. PETA’s claim was that the photo “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Mr. Slater, resulting in original works of authorship not by Mr. Slater, but by Naruto”. PETA was saying, in other words, that Slater’s use of the photo of Naruto, on his website and in a book, infringed on the rights of the monkey.

The judge in the case dismissed the suit because animals do not have standing in a court of law and thus cannot sue for copyright infringement. PETA appealed. During the appeal proceedings, Slater and PETA reached a settlement (exact terms unknown). In a joint statement PETA and David Slater apparently agreed that nonhuman animals have rights. Both are concerned about animal rights, and the so-called monkey selfie potentially advances the argument that animals have certain rights. According to the PETA website, Slater agreed to donate 25% of revenues from the photo to the sanctuary where Naruto lives. On David Slater’s website, the amount stated is 10% going towards a “monkey conservation project in Sulawesi”.

In 2018, the Ninth Circuit Court of Appeals rendered an opinion upholding the previous court’s decision to dismiss claims brought by a monkey of copyright infringement. The opinion blasted PETA saying, “PETA’s real motivation in this case was to advance its own interests, not Naruto’s …”.

Works that Lack Human Authorship

What does the law say about what creative works may be copyrighted and who may claim copyright?

In the U.S., copyright law (see The Compendium of U.S. Copyright Office Practices: Chapter 300) says that to qualify as a work of authorship, it must be created by a human. In fact, the Compendium specifically mentions the monkey example in its description of “works that lack human authorship”:

“… the Copyright Act protects ‘original works of authorship.’ 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of ‘authorship’ a work must be created by a human being … Works that do not satisfy this requirement are not copyrightable.

“The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

“Examples:

• A photograph taken by a monkey.
• A mural painted by an elephant.
• A claim based on the appearance of actual animal skin.
• A claim based on driftwood that has been shaped and smoothed by the ocean.
• A claim based on cut marks, defects, and other qualities found in natural stone.
• An application for a song naming the Holy Spirit as the author of the work.

“Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

So in the U.S. at least, an animal cannot be the author of a creative work, and the PETA suit would never have succeeded because the U.S. Copyright Office had already said that animals cannot hold copyright. But what about Wikipedia’s claim that the photo of Naruto is in the public domain?

You may be thinking at this point about situations in which the scientist videographer may find themselves challenged as the creator and copyright owner of a video. For example, wildlife camera traps are triggered by the movements of animals. Could someone claim that the resultant photo or video is the creative property of the animal or is in the public domain because the animal triggered the photo or video?

According to the U.S. copyright law, an author is “the creator of the original expression in a work” (unless the author transfers the copyright to another person or entity such as a publisher). To be copyrightable, the work must be created by a human and also reflect a “degree of creativity”, among other requirements. Thus, the monkey, a non-human, is automatically disqualified as the creator of a copyrightable work. But can the monkey be the creator of the image, i.e., the photographer?

Maybe.

The Wikipedia description of the image of Naruto says that the macaque “picked up photographer David Slater’s camera and photographed herself “. However, Slater’s description (in an interview on This American Life, Episode 631) has the camera set up on a tripod with a remote shutter trigger attached by a cable. The macaques were attracted to the trigger button, picking it up and putting it in their mouths, and eventually pressing it. The sounds of the shutter seemed to further attract the macaques attention and caused them to look into the camera lens. In other words, the monkey did not pick up the camera, look into the lens, smile, and snap the picture. Also, in this case, it’s clear that a human created the conditions whereby the photo was taken. So at a minimum, a human was involved in capturing the image and, I would argue, was the participant wholly responsible for the creative aspect of the photo. The macaque merely participated by mugging for the camera and pressing the button that triggered the shot.

Part of the confusion surrounding the monkey photo is because of its designation as a “selfie”, which implies that the monkey knew it was snapping a photo of itself. Although the macaques may have recognized themselves in their reflections in the camera lens, they were likely unaware that their image was being recorded or that pressing a button caused that recording. That is true of any audiovisual recording of nonhuman animals. A good example is a photo or video captured by a camera trap in which a motion-activated camera is positioned by a human to capture images of animals in a particular location during a particular period of time. The movement of animals triggers the camera to record images, but the animals are unaware of what’s happening. Human action is also necessary to download and process the resultant film. No one could reasonably argue that animals recorded in this way were the photographers. Wikipedia seems to agree, since their entry on camera traps features several examples of camera trap images, all of which are attributed to human photographers who were not even present at the time the images were recorded.

The images captured by Slater’s camera setup in Indonesia are analogous to images taken with camera traps. The macaques triggered Slater’s camera by playing with the button he installed but were unaware that their actions caused a visual recording. And unlike the situation with camera traps, Slater was present and interacting with the subjects of his photography as well as with the camera (to adjust settings).

The question that remains unanswered is whether actions by a human photographer to plan and set up a shot legally qualifies them as the author of the resultant photo, even if the recording is triggered by the animal’s actions.