When we last heard from photographer David Slater, the U.S. Copyright Office had rejected his claim that he owned the copyright for the famous series of selfies presumably taken unintentionally by a Celebes crested macaque. In 2011, Slater spent several days following and photographing a troop of macaques in Sulawesi, Indonesia, and the selfies were a lucky bi-product that quickly became a web sensation. Slater had asserted ownership over the photos, and had demanded that various on-line users, such as Wikipedia, either take them down or pay him as the copyright holder. The ruling of the Copyright Office was based on the theory that Slater had not taken the photo, so he was not the creator, and animals couldn’t own copyrights, so the photos were in the public domain.
Pop Ethics Quiz: Would it have been unethical had Slater simply released the photos without revealing that the selfies had been the lucky result of an accident, snapped by the monkey while it was messing around with his equipment?
About the Copyright Office’s ruling: I’m dubious. Slater owned the equipment, and had the sense to preserve the photos. A decision that if a photo is taken accidentally by a non-human or an act of God, the photographer who owns the equipment gets the copyright would have been fair. Zapruder owned the film that inadvertently caught President Kennedy having his forehead shot off, and it made him rich. Slater’s claim just goes a step further: Zapruder left the street to buy a hotdog, put his camera on on a trash can and asked a friend to “watch it,” and a dog turned the camera on, catching the grisly scene. So Zapruder doesn’t own the film anymore? Does that make sense to you?
Well, that was the ruling anyway. Then things got really ridiculous. Slater included the monkey selfies in a book, and People for the Ethical Treatment of Animals (PETA) brought a law suit against Slater on behalf of the monkey,which PETA claims is named Naruto, and asked that PETA be appointed to administer proceeds from the photos for the benefit of Naruto and other crested macaques in the reserve on Sulawesi. So PETA would suddenly be the de facto copyright holder.
The 9th Circuit Court of Appeals heard oral argument in the case this week. The judges pointed out that the text of the copyright statute doesn’t support the theory that a non-human primate could own a copyright. “There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto,” said Judge N Randy Smith. “What financial benefits apply to him? There’s nothing.” Judge Carlos Bea mused about the how the copyright could pass to the macaque’s heirs. “In the world of Naruto, is there legitimacy and illegitimacy?Are Naruto’s offspring ‘children’, as defined by the statute?”
These judges are amusing themselves with legal theory masturbation. PETA is grandstanding as usual and trying to grab some revenue it does not deserve. The combined effect of this unholy alliance has meant that Slater, who should have been able to profit from his good fortune, is being ruined by a random conspiracy of too technical bureaucrats, bored judges and unscrupulous animal rights fanatics. The photographer is, he says, now broke from all the legal fighting. He couldn’t afford to attend the hearing, can’t pay his lawyer or even afford his photography equipment. He says that he may have to walk dogs to feed himself.
Serves him right for exploiting the poor monkey and stealing her artistic product.
Astoundingly, Ann Althouse blames Slater for his plight, suggesting that the photographer could have “let it go,” pay deep pockets PETA for using the photos that he was responsible for, and let its scheme succeed. Maybe she’s wired that way; I’m not. I’d live in a cardboard box before I’d let PETA get away with that. Meanwhile, the legal system is willing to destroy an artist in order to explore and settle an obscure point of law.
As Mr. Bumble so memorably put it in “Oliver Twist”: “The law is a ass.”