At this point, People for the Ethical Treatment of Animals is known largely as an organization devoted to executing tiresome publicity stunts that, while theoretically attached to the concept of animal rights, mostly function as self-promoting performance art. While irritating, this is generally not a great moral crime. If a nonprofit wants to spend its time making weirdly sexual, designed-to-be-rejected-by-the-networks Super Bowl ads plugging vegetarianism with the hope that somebody will giggle and donate when they watch the clip online, that’s its prerogative.
Unfortunately, PETA’s latest bit of shtick seems to involve a victim. This week, the group filed a copyright infringement suit against David Slater, the wildlife photographer you may recall from last year’s ever-amusing monkey-selfie controversy. In 2011, during an expedition in Indonesia, a black crested macaque grabbed Slater’s camera and began gleefully snapping pictures of itself. One of its shots, posted above this story, miraculously turned out to be a perfectly focused, adorably stoned-looking selfie that was republished around the world. But Slater’s luck ran dry when Wikipedia editors posted the portrait, claiming it belonged in the public domain. Their reasoning was simple: In the United States, the copyright for a photo typically defaults to whoever hit the shutter. Since, in this case, a monkey did the pressing, and monkeys can’t claim copyrights, the image had no owner.*
The U.S. Copyright Office agreed. Last August, it issued a guidance stating that it would not register works created by animals or through the forces of nature. Its first example? “A photograph taken by a monkey.” Nonetheless, Slater still seems to insist the image’s rights are his, and has continued selling copies of the selfie (he offers signed prints on his website), which he also used as the cover image for a self-published book of his work. The merchandising is perfectly fine. There’s no law, after all, against profiting off work in the public domain.
Sadly, this is where PETA enters the frame. The activist group is suing Slater and the self-publishing platform he used to produce his book, Blurb, for damages on behalf of the macaque that snapped the selfie—its name is apparently Naruto—claiming that the monkey is the rightful owner of the copyright. How come? According to PETA’s lawyers, U.S. copyright law never explicitly states that an “author” must be human. “While the claim of authorship by species other than homo sapiens may be novel, ‘authorship’ under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto.” Should PETA win, it says proceeds from the suit as well as future profits from the photo would be used to care for Naruto, his primate community, and the reserve where they live.
Somehow, journalists have found at least one law professor who was willing to call this “a cutting edge legal question” and to claim that PETA had “a fair argument,” even if it faced somewhat long odds. Now, I myself am not a law professor. But I would submit anyway that PETA’s lawsuit is both absurd and gross.
First, it’s obvious that copyright is a sideshow here. The lawsuit is part of a thus-far-unsuccessful line of “animal personhood” cases, which have tried to claim that various fauna deserve rights similar to homo sapiens. These are, suffice to say, a bit controversial, seeing as they would upend everything from scientific testing on animals to, possibly, the existence of zoos. This year, a state court judge in New York rejected a suit seeking a writ of habeas corpus that would have freed two chimps from a research laboratory in New York on the theory that they were being wrongfully imprisoned. PETA itself brought an unsuccessful case against SeaWorld claiming that the company was violating the 13th Amendment’s prohibition against slavery by keeping orcas in captivity (a judge swiftly concluded that the amendment was, as most of us assumed, meant to apply to humans only).
Even if you are the sort who believes that animals should be entitled to some human rights, however, extending that idea to intellectual property law is patently idiotic. Copyrights exist in order to encourage more artists, writers, and musicians to create new work by making sure they can earn money off of their labor. Full stop. It says so right there in the Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (Italics mine.) Giving a macaque a copyright, meanwhile, does not promote jack. You cannot incentivize a monkey to spend more time behind a camera by dangling out the promise of financial compensation, because financial compensation is an abstract concept beyond the capacity of a simian brain. My guess is that most decent judges will take those factors into account when deciding whether to radically reinterpret our national IP framework.
OK. So, PETA filed a silly lawsuit. In other news, it was warm in Florida last week, and Starbucks is doing a brisk business in pumpkin spice lattes. The reason this suit is particularly galling, though, is that, in this case, the group has sued not a massive corporation with a significant legal budget, but a random nature photographer, who will likely have to drag himself into court and quite possibly spend some of his own money to defend this ludicrous claim, at least until a judge has the decent sense to dismiss it. (I emailed Slater to ask how much this suit might cost him personally but haven’t heard back. Notably, Blurb, his self-publishing company, has an indemnity clause in its contract that requires its clients to defend it in court cases.) The guy was unlucky enough that his most famous photograph was snapped by a macaque, thus obliterating his claim of ownership. Now, thanks to PETA’s grandstanding, he may literally have to pay for it.
*Correction, Sept. 28, 2015: This post originally used the words monkey and ape interchangeably. They are not synonymous, and macaques are specifically monkeys. For the record, though, this lawsuit would be equally absurd if an actual ape, such as a gorilla, were involved.