September 14, 2017
For the past two years, there has been an ongoing battle between primates and humans, and surprisingly this battle took place in the courtroom, not a movie theater. The beginning of this story takes place in 2011, when British nature photographer David Slater traveled to the country of Indonesia to photograph and spread awareness of the Celebes crested macaques. The Celebes crested macaques have entirely black faces and bodies except for the striking bright pink coloration of their ischial callosities, leathery, hairless pads on the rump. These primates are found only on two islands in Indonesia.
Slater followed a group of the macaques for three days gaining their trust and even joining their troop. On the second day Slater, following his normal routine, set up a tripod and camera with a remote trigger to take the picture. One of the macaques, named Naruto, was able to snap a photo of his face, showing his amber-colored eyes and mouth open in a half-grin. The photograph became an instant success and helped David Slater achieve a vast amount of notoriety and profits. Of course when this happens, disputes are bound to follow.
In early 2014, the Wikimedia Foundation, an American company, posted the picture on their website with the understanding that copyrights are held by the creator, and with no human creator, the picture shifts into the public domain. A copyrighted work moving into the public domain means that anyone can use the work without obtaining permission, but no one can ever own it. In August 2014, Slater requested the owners of the website either pay for the photograph or remove them from their website, claiming copyright ownership. Slater argued that he is the owner of the copyright because he is the one who set up camera, tripod, lighting, and background while also spending a significant amount of money to embark on this journey to photograph the pictures. In December 2014, the United States Copyright Office clarified its principles on this matter, explicitly stating that works created by non-humans are not copyrightable, and listing a “photograph taken by a monkey” and “a mural painted by an elephant” in its compendium as examples of copyrights that are not able to be registered. Slater does hold the UK copyright though.
A second dispute arose after Slater self published the photograph in a book titled “Wildlife Personalities” through self-publishing company Blurb, Inc. The People for the Ethical Treatment of Animals (PETA) filed suit against the publisher, requesting that Naruto be assigned the copyright. Judge William Orrick of the US District Court for the Northern District of California rejected PETA’s claim that the copyright to the ‘monkey selfie’ photograph should belong to Naruto and PETA appealed to the US Court of Appeals for the Ninth Circuit. On September 11, 2017 , Slater, the publishing group, and PETA reached an agreement out of court whereby 25% of all future profits from the photograph will be given to charity funds in Indonesia designated protect the Celebes crested macaques.
Author: Chris Mayle, Patent Attorney
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