Monkeying around with IP

We know that humans, as well as other legal entities, are entitled to claim proprietary rights over tangible as well as intangible things. They are eligible to have ownership over an intellectual creation in the form of copyrights, patents, trademarks etc. 

But have you ever wondered if animals too can assert ownership rights over Intellectual Property? Whether animals can make a creation that is capable of being copyrighted, patented or trademarked under its name?

This particular question has thrilled many legal experts around the globe time and again. It particularly gathered worldwide attention in 2011 through the controversy between British photographer David Slater, Wikimedia Commons and the blog Techdirt. The case also came to be famously called as the Monkey Selfie dispute. The story begins in the year 2008 when David Slater visited Indonesia to take photos of a very rare species of a monkey named Celebes Crested Macaques.[1] During the photo session, a monkey accidentally took a selfie of itself using the tripod and the camera equipment with its own hands. Later, in the year 2011, a media house named The Wikimedia Foundation posted the same selfie image in their newspaper. This particular move by the media house was opposed by the photographer and he challenged the same and instituted a suit claiming compensation from Wikimedia Foundation. Wikimedia contented that since, the ‘selfie’ photograph was in the public domain and it was represented and viewed as a work of a “non-human animal” there can be no copyright infringement. The photo was being taken by an animal and not by a human so ultimately no human can claim copyright in that photo. Also, an animal is not personified in the same sense as a human or other legal persons are and thus an animal (monkey in this case) cannot be recognized as a person. Slater in his reply contended that the complete set up involving the tripod stand, the camera and its settings and the place of the shoot was his work. Even the camera was under his ownership and he himself held the tripod with his own hands from the other side when the selfie concerned was taken by the monkey and thus on these bases, he has a valid claim of copyright over this photo. 

The real monkey business in copyrights however started with the case of Naruto et al Vs. David Slater[2],in the year 2015, when an American organization working for the animal rights, People for the Ethical Treatment of Animals (PETA) filed a suit against David Slater in the United States District Court for the Northern District of California requesting that a copyright be registered over the selfie photograph taken by the monkey in the name of the monkey and praying that PETA be appointed as the legal representative of the monkey to look after the transactions and the proceeds from the royalty generated by the photograph. PETA contended that these proceeds would be used for the upliftment of the animals along with the monkey itself which took that selfie. To make it more realistic and to provide personification to the monkey concerned, PETA named the monkey as “Naruto” for this case. PETA filed the suit following the Principle of Next Friend, allowing itself to sue in the name of the monkey who was not able to sue for the same. The suit was dismissed by the lower court and in the appeal too, the 9th Circuit Court of Appeal quashed the appeal and held that the US Law does not acknowledge animals as persons and allowing next friend standing for animals would violate the public policy behind next friend standing principle.  Therefore, animals cannot be given ownership of copyrightable works and thus no copyright in the photograph exists in the name the monkey. The court dismissed PETA’s claims and reprimanded PETA by stating that PETA was only furthering its own motive rather actually working for the benefit of the animals. In a very punny manner, the court asked PETA to stop ‘monkeying’ around.

This case attracted experts’ opinions from all round the world. IPR lawyers from Britain and US, Mary Luria and Charles Swan opined that as the photograph was taken by an animal and not by a person (a legal person to be more specific), no one can claim copyright over that photo and the fact that camera was belonging to someone has no value in the eyes of law.[3] Similarly, professor of the University of Michigan, Jessica Litman stated that being a photo captured by an animal makes this fact very clear that humans cannot claim authorship over that particular photo and it is better to regard the image to be a creation belonging to the public domain on which no one could acclaim the copyright.[4] The US Copyright Office said that it is the basic practice of law that those works which are the actual product of human authorship can be rightfully copyrighted. Thus, such work of animals and machines are excluded where there is no significant human interference.[5] Ahead of this, the UK IP Office opined that the claim of copyright by the photographer over the selfie photo captured by a monkey and not by him is itself a very debatable and a long-lasting issue which requires thorough deliberations over it and his claim depends upon the extent to which he contributed in the capturing of the selfie.[6]

It is a well-established principle of law in all the nation-states that only the works of the human mind, being authored by humans have the eligibility to be protected as intellectual property and because animals are not persons, they are not eligible for claiming any rights. If animals are to be given IP Rights, as a first requirement, they will have to be addressed as persons on the same lines as humans. This will require a very drastic policy change because providing ‘personality’ to animals can cause some serious menace too. For example, if animals are accorded the status of a person, then killing of animals for consumption purposes would attract serious criminal liabilities (murder for example). There can be other serious consequences too and therefore, providing personhood to animals can be a revolutionary but at the same time, a lethal step for mankind.

[1] Louise Stewart, Wikimedia Says When a Monkey Takes a Selfie, No One Owns It Newsweek (2016), https://www.newsweek.com/lawyers-dispute-wikimedias-claims-about-monkey-selfie-copyright-265961 (last visited Jun 1, 2020).
[2] Naruto et al Vs. David Slater [No. 16-15469 (9th Cir. 2018)]
[3] Olivier Laurent, Monkey Selfie Lands Photographer in Legal Quagmire (2014), https://time.com/3393645/monkey-selfie-lands-photographer-in-legal-quagmire/ (last visited Jun 1, 2020).
[4] Jacob Alfred, US government: Monkey selfies ineligible for copyright The Christian Science Monitor (2014), https://www.csmonitor.com/Technology/Tech-Culture/2014/0822/US-government-Monkey-selfies-ineligible-for-copyright (last visited Jun 1, 2020).
[5] Ibid
[6] Samuel Gibbs, Monkey business: macaque selfie can’t be copyrighted, say US and UK The Guardian (2014), https://www.theguardian.com/technology/2014/aug/22/monkey-business-macaque-selfie-cant-be-copyrighted-say-us-and-uk (last visited Jun 1, 2020).