“I’m baaaaack!”
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.”
Ethics Alarms 
PETA is an ass.
Gonna leave this here
https://www.petakillsanimals.com/proof-peta-kills/#petakills
1) Sod busters buying up awful land in the west for agriculture expecting only to make a living on crops. Only a generation later half starved they discover OIL on their property.
It wasn’t theirs because they had no intended effort in acquiring it. (according to this logic).
2) Most success in industry is a combination of hard work and brains. When one or two people TRULY fly past and just makes a ton of money, often it’s the *lucky* combination of hard work, brains, RIGHT LOCATION and RIGHT TIME.
We should take their earnings instead of be happy for their situation (according to this logic).
Why doesn’t the same reasoning apply across the board? Isn’t there a law that says something to the effect that except for a set of circumstances a related event would not have happened? Example if a robber has a gun with no intent to do anything but use it to frighten the victim into compliance and it goes off and kills someone the robber is guilty because except for the fact that he brought a gun the death wouldn’t have happened. Shouldn’t that same thought apply? If the photographer had not brought the camera the picture could not have happened. So the picture is his “fault.” Or in this case his picture.
“if a robber has a gun with no intent to do anything but use it to frighten the victim into compliance and it goes off and kills someone the robber is guilty because except for the fact that he brought a gun the death wouldn’t have happened.”
Veddy interstink! Something like that happened in the Berkeley of the Midwest a couple of weeks ago, the gun never went off but someone died; they were literally “scared to death.”
http://host.madison.com/wsj/news/local/crime/contractor-died-during-culver-s-robbery-after-he-was-forced/article_9131b4c8-f013-53b0-9d97-9a49d0109723.html
I wonder what the law is on that? Maybe I don’t know what I’m talking about. (A common problem for me.) I’d think the same idea applies.
”I wonder what the law is on that?”
Good question; any lawyers out there…?
The guy they’ve charged is an EPIC POS with multiple prior arrests & convictions.
“Nicholas A. Ivy, who has no permanent address, was arrested Monday on tentative charges of felony murder and armed robbery after DNA found at the Culver’s, 2102 W. Beltline, matched Ivy’s, Madison police spokesman Joel DeSpain said.” (bolds mine)
http://host.madison.com/wsj/news/local/crime/man-arrested-on-charges-he-was-part-of-culver-s/article_2edf4f99-93d7-5861-a9f0-a66dddbca51c.html
”In Wisconsin, a Good Samaritan Must Call for Help & Stick Around.”
http://lawyersonsawyer.blogspot.com/2008/12/did-you-know-in-wisconsin-good.html
The talented Mr. Ivy did neither.
I believe it is termed “Capitol Murder”, and IIRC you can be charged with it, even if you do not commit the crime… for example if you are a getaway driver and your cohorts kill someone during the crime, you can be charged with Capitol Murder.
I think you mean “Felony Murder.” A death caused in the commission of a felony is considered murder.
So, if you are just trying to rob a bank, or commit burglary, or perjury (in the case of the Clintons), and someone dies as a result, it is considered murder, even if there was no intent and even if it was a pure accident.
-Jut
In Texas it’s felony murder, which they usually can turn any murder to if they look at your day prior to the actual killing. You can’t just put someone to death in TX, s/he must have committed felony murder. When my mom was in law school, she had to come up with a scenario for class where there was no deadly weapon: Guy robs a 7-11 with only a finger in his pocket as a ‘gun.’ He scares everyone, but no one’s hurt. UNTIL… he knocks over the Frito-Lay stand by the door as he runs out, which falls into a customer, slitting his throat and he bleeds out. The perp can be put to death if convicted, because the original felony was the stick-up, even with no weapon. She told me this story over breakfast as a high schooler. I loved it.
“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 wile it was messing around with his equipment?”
No, it would NOT have been unethical to release the images without disclosing how the images were captured. However, I don’t see a scenario playing out in which he is NOT pressed for details on how the images were captured. In which case he has to tell the truth.
(or say “None of your business”)
Exactly right, but for Slater, isn’t the fame of the picture because they are selfies not taken by him? If he said “I took these using a remote shutter while the subject was holding and fidgeting with the camera” people would not have the same interest in the photograph. The charm of the photograph is because of the story of the photograph: that it was captured by the subject.
With all of that being said, I find great value in the court ruling on this with finality in Slater’s favor.
Conversely, a great deal of the value of the photos is a direct result of the unusual circumstances that caused them to be taken. If he had never revealed the backstory about the photos, then I think it’s likely that they would never have become popular.
So, sure . . . he’d own them, and no one would be disputing it . . . in the same way that I own a picture of my own shoe from that time I accidentally touched my cell phone screen at the wrong time (which is to say: worthless).
–Dwayne
P.S. …and that pic STILL makes me giggle.
Also…apparently I agree with Tim, who may or may not be an actual real-life ninja.
–Dwayne
I have not read the decision, so I don’t know the exact posture of the case, except that it has made it to the appeal stage. Such an appeal may come directly from the Copyright office, instead of District Court. But, this is PETA’s case, so it probably started in some District Court.
Anyway, my initial thought about the case was, this is Rule 11 territory. (Rule 11, for the non-lawyers, being a rule that bars parties from bringing cases that are frivolous and allows the Court to punish the frivolous litigant by sanctioning them and, as is usually requested, ordering the payment of the opposing party’s attorney’s fees.) However, Rule 11 does not bar claims that are made on a good faith basis for the extension or modification of the law, reversal of existing law, or the establishment of new law.
I think PETA’s position is silly, even by 9th Circuit standards, but I think that about most of their positions (if not all of them). However, like the animal here, many other categories have gone from no legal standing or capacity to full or limited capacity: serfs, women, children, and slaves. Animals have even gotten certain indirect rights through the legal system by making cruelty to animals a crime (and making cockfights, and dogfights illegal, for example).
So, posed with the question of whether the animal here could be considered to have standing under the copyright law, the Court could have simply said, “no.” However, posed with the question of whether the copyright law could or should be expanded to cover non-human primates, the Court could, and apparently did, expound on the many ways in which the non-human primate could not reasonably be considered a beneficiary of the law.
I would not jump to the conclusion that this was masturbation. It appears to be an attempt to give fair and unprejudiced consideration to a novel (though stupid in my view) theory.
-Jut
Good analysis.
Seems like that should happen here, but the photog is clearly not getting the legal costs covered. Frivolous indeed.
If PETA were to become successful on this count, could they require release forms be signed by animals for being the subject of photographs? Perhaps PETA then owns every bit of animal photography because no photographer has consent of their subjects. I really hope Slater gets judgement in his favor and some relief from PETA.
I can see it now: ALL PHOTOGRAPHY IS PROHIBITED AT THE ZOO.
–Dwayne
I don’t think this case is that clear-cut. Camera and film (was this digital or film?) does not make a photographer. My husband takes far better photos than me, so the person who “pushes the button” really does determine the finished product. This is especially true for selfies. (I can’t even take a decent selfie!).
I think the problem here is that the monkey is not a person. Would your analysis change if a teenager took some amazing photos with someone else’s equipment? How about a toddler?
What if Slater had used a remote shutter to snap the picture, but the monkey was holding, framing, focusing the image? Did Slater really determine the finished product?
Well crap, looks like my comment disappeared into the ether. Wait, have I been banned too? Testing, testing ….
Just checking to see if I have been banned so using another email address. My comments under my normal email are not displaying. Testing …..
I have no idea what happened, SS—prompted by this, I found three of your posts stuck in spam, and there was no reason that could fathom. When I really ban commenters—why would I ban YOU?—-I spam them, but WordPress usually doesn’t take my cue and continue to spam them.(Shhhhhh...) So unless I had individually spammed all three posts—and in fact, I didn’t even see them—they shouldn’t have turned up there.
If any post doesn’t come through, just alert me on e-mail or Facebook.
All of the comments are now up, and again, I apologize.
Well done.
I wouldn’t be too hard on Anne Althouse, though. She is coming from a pragmatic perspective that settling with PETA would limit the risks and costs of litigation. However, there is no guaranty that PETA would honor any agreement. After all, this group thinks that committing felonies against legal businesses is perfectly justifiable, especially when the guilty businesses are trafficking in animal skins.
jvb