Monkey see, monkey sue

One of the disputed images (Wikimedia Commons / PD)
In case you hadn’t heard, animal rights organisation PETA and primatologist Antje Engelhardt, Ph.D., are suing photographer David Slater and self-publishing services provider Blurb, Inc., over photos of a crested macaque which Slater published in his book Wildlife Personalities. Motherboard has a pretty good series of articles on the subject.

The core of PETA’s complaint is that the photos were not taken by Slater, but by the monkey, who inadvertently pressed the trigger while looking at her reflection in the lens of a camera which Slater had left unattended. Therefore, quoth PETA, the monkey holds the copyright to the photos, and all proceeds from the use of those photos should go to PETA, because of reasons.

If you thought this was bizarre, it gets better: PETA and Engelhardt are not the nominal plaintiffs in the lawsuit. Instead, they claim to be merely representing Naruto, a male macaque living on the same preserve as the female macaque in the photo. In court documents, they consistently maintain that Naruto is the macaque in the photo; outside of that setting, they have repeatedly acknowledged, at least indirectly, that he is not.

Having read both defendants’ motions to dismiss (the title of this post was shamelessly ripped from Slater’s motion), I am left to ponder the questions of PETA’s standing and of the monkey’s agency.

Standing

Both defendants challenge the plaintiff’s standing on various grounds, including the fact that he is a monkey, but neither of them challenge PETA’s standing, which seems to me to violate the prohibition of third-party standing, unless PETA can show that they have power of attorney for the allegedly injured party (which is, apparently, a different monkey than the one on whose behalf they claim to be acting). I find that strange, but the case is ridiculous for so many other reasons that I doubt it matters, legally speaking.

Agency

PETA claims that the pictured monkey holds the copyright to the photo because she pressed the button that caused the picture to be taken, but they do not claim that she set the camera up, pointed it, or performed any other action integral to the art of photography. Blurb address this tangentially when they quote, indirectly, 100 U.S. 82 (1879):

In this as in regard to inventions, originality is required. And while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, &c., it is only such as are original and are founded in the creative powers of the mind.

Nor do they claim that she had any idea of what she was doing except looking at a shiny piece of glass at the end of a tube sticking out of a black box.

If PETA prevails, this means that the mere act of triggering a camera set up by someone else, even without any understanding of the concept of a camera or ability to comprehend that an image was taken, grants the subject the copyright to the resulting image. How far will this principle extend? Will it extend to motion-triggered game cameras? Would PETA sue hunters on behalf of deer for the rights to the footage? Would they sue an ornithologist on behalf of crows that trigger cameras set up to study their behavior?

Ah, who am I kidding, of course they would. Because PETA.

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