Bad news for any artistic monkeys, apes, elephants, or dolphins who had dreams of selling their creations at a gallery showing someday: A federal lawsuit over a famous photos taken by a macaque in 2011 has come to an end without any real decision on whether or not non-humans can hold a copyright.
A quick recap of the Naruto saga: In 2011, professional photographer David Slater was working in Indonesia when a macaque monkey named Naruto (though the actual identity has since been questioned) swiped one of his cameras and began snapping. While most of the resulting photographs were blurry, one — as seen above — was a pristine shot of Naruto, grinning like some Instagram celebrity trying to sell you some crappy diuretic tea.
The photo became an instant hit online, because few things beat a grinning macaque for pure fun, with people freely sharing the image. Slater has repeatedly attempted to claim he holds the copyright on the photo, but there is one big factor working against him: He didn’t take the picture.
Sure, there are artists who have other people do the actual creative work but still hold the copyright, but that is usually a contractual agreement between the parties. For instance, I’m writing this story, but I don’t hold the copyright; my employer does.
But Naruto was no one’s employee. He swiped Slater’s camera and took the photos. If someone steals my laptop to write a poem, I don’t then own the rights to that poem. If a monkey steals my laptop and writes a poem, well then no one holds the copyright.
U.S. Copyright guidelines explicitly state that only humans can hold copyright, and that works created by a non-human animal are not copyrightable.
In 2014, the Wikimedia Foundation — the nonprofit behind Wikipedia — cited these guidelines in ruling against Slater‘s efforts to remove the Naruto photo from the Wikimedia Commons library of free-to-use images.
Trying to press the issue and establish that animals can hold copyright, the folks at PETA sued Slater in 2015 on behalf of Naruto, seeking to have the court rule that the macaque was the rightful holder of the copyright and that he deserves royalties for use of the image.
A federal court judge ruled against Naruto in early 2016, dismissing the lawsuit. The judge said that it’s up to Congress to extend these rights to animals if it wants to, but as things stand now the law does not allow for non-humans to hold copyright.
PETA appealed that ruling to the Ninth Circuit Court of Appeals, arguing that the selfie photo may not have been a case of dumb luck.
“Studies have demonstrated that macaques like Naruto manipulate objects for a desired effect, therefore it would be well within the capacity of Naruto’s abilities to manipulate the camera in such a way that he ended up taking a photo of himself,” read the PETA appeal. “To put the matter plainly, there is no dispute that Naruto created the images in question. Naruto is, therefore, the author.”
A three-judge panel finally heard oral arguments on the appeal in July 2017:
Soon after both sides indicated to the court that they were discussing a settlement, and this afternoon PETA says that an amicable end has been brought to the dispute.
The actual terms of the settlement are confidential, though PETA say that Slater has agreed to donate 25% of gross revenues from his use of any of the monkey-taken images to a list of approved charities.
In a court filing seeking dismissal of the appeal [PDF], the parties also ask the appeals panel to strike the lower court determination that Naruto can’t hold copyright because he’s not a human. If granted, it would be as if the 2015 dismissal never happened.
The settlement can not have the effect of declaring Slater as the rightful copyright holder, as PETA is not in any position to grant that copyright to anyone. The lack of a precedent-setting decision in this case means that Slater still does not definitively hold the rights to the selfie pic, and it’s arguably in the public domain. The settlement may, however, embolden Slater to continue making copyright claims against others who do use the photo without his permission, particularly since he will be obliged to share 25% of whatever he gets with charitable organizations.