Does This Selfie Make Me Look Like a Copyright Infringer?
by Tal Grinblat
Caution. This blog lacks lawyerly gravitas. Why?
The Ninth Circuit Court of Appeals will consider a copyright infringement suit brought by a primate – specifically, Naruto, an Indonesian crested macaque that supposedly made fantastic use of his opposable thumbs and took a selfie in 2011 – long before primate selfies became a “thing”.
Naruto used a camera owned by David Slater, a wildlife photographer. Apparently, the macaque is well versed in camera use, having observed numerous tourists visiting his reserve in Indonesia.
Slater had been selling Naruto’s photogenic image since the primate’s fateful selfie-indulgence day. But under U.S. copyright law, the person who takes the photo is the copyright owner for the resulting image. So is Naruto entitled to copyright protection for his image?
‘Next Friends’ Got Naruto’s Back
A “next friend” in legal terminology, is a person who represents someone who is disabled or otherwise unable to bring a lawsuit on his or her own behalf.
Enter, stage left, the People for Ethical Treatment of Animals (PETA), along with primatologist Antje Engelhardt who sued Slater in 2015 on behalf of Naruto for copyright infringement, even though the U.S. Copyright Office determined in 2014 that non-human authors cannot hold copyrights (see sections 306 and 313.2.).
Last year a district court judge found for Slater and dismissed PETA’s case, holding as follows:
Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art.” . . . Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.
PETA and Engelhardt disagree. In the “Next Friends” appellate brief, they argue that nothing in the Copyright Act limits the law’s application to humans, and that it is antithetical to the purpose of the Act to specify who can be an author; and that protections under the Act depend on the originality of the work, not the author’s humanity.
How will the 9th Circuit decide? That remains to be seen. Perhaps we can get Naruto to draw us a picture.
Tal Grinblat is an Intellectual Property Attorney and a Certified Franchise & Distribution Law Specialist.