01 March 2019

Personhood and Simian Copyright

'Why A Monkey's Action of taking a Selfie should expand the definition of Author in the Copyright Act' by David Schneider in (2018) 34(4) Touro Law Review 1350 comments
In 2011, wildlife photographer David Slater set up a camera on an island in Indonesia and hoped to capture a picture of the Celebes Crested Macaque, an endangered monkey species indigenous to Indonesia.  Naruto, a six-year old Celebes Crested Macaque, came upon Slater’s camera and took multiple pictures of himself.  Naruto, considered “highly intelligent,” familiarized himself with the operation of the camera by observing humans who used the camera. Multiple parties, including the parties who filed a lawsuit on Naruto’s behalf, claimed copyright to one particular photograph, informally known as the “Monkey Selfie.” Subsequently, the People for the Ethical Treatment of Animals (hereinafter “PETA”) and Antje Engelhardt filed a complaint against Slater in the United States District Court for the Northern District of California alleging that Slater infringed Naruto’s copyright in the photograph.  The court granted Slater’s motion to dismiss because “the Copyright Act [did] not confer standing upon animals like Naruto.”  
The Copyright Act (hereinafter “the Act”) does not specifically define who is protected by copyright.7 Rather, the Act broadly states that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.”  Congress enacted the Copyright Act of 1976 to preserve and promote artistic creations by giving legal recourse to those whose work is copied and exploited. Although the Act does not specifically identify those entitled to copyright protection, based on a combination of case law precedent and the United States Copyright Office’s interpretation of the Act, courts have refused to recognize that higher intelligence animals, such as monkeys, can create original works of authorship fixed in tangible media of expression, such as photographs. However, such interpretation of the Act directly conflicts with Congress’s overall intent when it implemented the copyright system in the United States. 
Animals can create new works of art, which should be protected by copyright to prevent humans from exploiting them for personal profit. Because of the combination of ever-increasing public interest in protecting animals and their rights with scientific discoveries based on the intelligence of animals, animals should be afforded similar protections in copyright as humans. Courts should expand the definition of “works of authorship” to include works created by higher intelligence animals, such as monkeys, dolphins, pigs, crows, raccoons, and elephants, who have demonstrated that they can communicate with humans in some form or another and understand human technology. 
Part II of this Note introduces the case Naruto v. Slater, which PETA and Engelhardt brought in the Northern District of California on behalf of Naruto. This Part also discusses the subsequent history of the case, which includes an appeal and settlement. Part III examines the Copyright Act of 1976 and analyzes Congress’s intent when it enacted the statute. This Part also explains why courts should interpret the statute to protect original works of authorship in animals. Part IV argues that courts should disregard the Copyright Compendium’s interpretation that an author needs to be a human being. Part V discusses the Northern District of California’s flawed reasoning in Naruto. Part VI discusses recommendations for courts to use in the future when dealing with similar animal rights issues. Part VII evaluates the Copyright Act and provides examples where the Act itself provides protections for animals. Finally, Part VIII concludes that animals should be permitted to bring copyright infringement lawsuits because they can create original works of authorship.