Did PETA Name the Right Macaque in Its 'Monkey Selfie' Lawsuit?
Monkey truthers have been challenging the claim.
One of the monkey selfies taken with David Slater's camera. Photo: David Slater (or Naruto?)/Wikimedia Commons
On Tuesday, September 22, People for the Ethical Treatment of Animals (PETA) filed a lawsuit on behalf of a male Sulawesi crested macaque named Naruto, arguing that the monkey owns a copyright in the famous "monkey selfies."
The lawsuit is against wildlife photographer David Slater, whose camera was used in the creation of the monkey selfies, and publisher Blurb Inc., which published a book of his photography.
In response to the unusual lawsuit, we asked a number of questions. One issue that was not, in the view of some readers, adequately addressed: How did PETA know the monkey in the photo was Naruto, or even that it was a male?
This has led some people to go, for lack of a better term, Monkey Truther on me.
Some coverage of the monkey selfie controversy last year identified the macaque as female. The photographer David Slater identifies the monkey as female in his book, Wildlife Personalities. PETA's own president, Ingrid Newkirk, identified the monkey as female in a 2014 essay arguing that the monkey should own copyright in the photos.
Male Sulawesi crested macaques (also known as Celebes crested macaques and black macaques) are about twice the size of female macaques. They also have "enlarged canine teeth compared to females." The monkey in the famous "selfie" photo does not have enlarged canine teeth compared to juvenile monkeys.
According to PETA, the other plaintiff in the lawsuit, Antje Engelhardt, is one of the primary researchers with the Macaca Nigra Project and has "known Naruto since his birth in November 2008." When the story of the monkey selfies originally went viral, the researchers at the Macaca Nigra project were "very much aware of, and recognized, Naruto in the photographs."
Photographer David Slater told us in an email, "All you need to know is PETA have no proof they are talking about the same monkey. They hope you will buy into their stunt because an expert is willing to say her monkey is the one in my photos without proof. Engelhardt is bringing the Macaca Nigra Project into disrepute." He added, in reference to the photos being posted on Wikipedia as being under the public domain, "And, WHY aren't PETA suing Wikimedia for loss of royalties? Important question!"
"All you need to know is PETA have no proof they are talking about the same monkey."
We consulted with other primatologists. Jerome Micheletta explained in an email, "Without prior experience with a particular individual, my opinion is that it is impossible to identify or guess the sex of a young crested macaque from a picture of its face only." He also added that although he himself could not identify the monkey, he had no doubt that the researchers of the Macaca Nigra Project had been able to accurately identify the monkey.
Carol Berman, who has Ph.D students associated with the Macaca Nigra Project, wrote in an email that "I can say with confidence that the monkey in the full body photo is a juvenile male," pointing out that there is "a round pink spot in his crotch which is the top of his withdrawn penis." (The full-body photograph can be found on page 22 of PETA's lawsuit).
However, Berman also told us that the she is not positive that "the 'smiling' monkey is the same individual." Based on the teeth, that monkey is "either a female or a young male."
Naruto, who was born in 2008, was about two or three years old when the photographs were taken.
If you're looking for a long-form birth certificate, we don't have one. Do monkeys even have long-form birth certificates? Never mind, there are a lot of questions about monkeys we want answers to.
When we asked PETA's general counsel, Jeffrey Kerr, whether Naruto knew about the lawsuit, he responded, "Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly."
We also asked if Naruto knew whether the selfies existed. "I have the same response," he replied.
We then asked whether a monkey could intentionally create a copyrighted work if he didn't know the work existed. Kerr answered in the affirmative, later clarifying that "He was aware of the cause and effect relationship between pushing the shutter, his reflection in the camera," but also insisted that we not report he said that the monkey knows his own selfies exist on the internet.
For a deeper dive into the legal logic behind this lawsuit, the full interview with Kerr follows.
How was the monkey identified?
Naruto is known to the people who work in Sulawesi for the protection of the macaques [the Macaca Nigra Project]. They have known Naruto since his birth in November 2008, and when the story originally broke long ago, they were very much aware of, and recognized Naruto in the photographs.
How did PETA get in touch with that organization and then, identify Naruto?
We searched who is involved in that work, and contacted them. The other Next Friend in the case, Dr. Engelhardt, is a foremost expert on the macaques, and she and the people she works with confirmed his identity.
Note: Federal Rule of Civil Procedure 17(c)(2) says:
A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.
PETA is using this rule to represent the monkey in a federal district court.
How did he get the name Naruto?
That I don't know.
My understanding is that as in any type of situation, for purposes of being able to identify the animals that they are studying in the wild, that they will frequently provide names to them. They can tell one from the other.
Yeah. I think that it's interesting though that his name is Naruto, which my assumption is, it's a Japanese name.
That wasn't a question. I'm not sure how to respond to that.
I was just curious as to where the name came from. But that's not… you can't answer that question.
There are different names for different macaques down there, and I don't know the specifics of why somebody chose one name over another for particular macaques.
Right. So, my understanding is that the Copyright Office has refused to register the photo, or one of the photos…
My understanding is that they've never been asked to register a copy of the photograph. I believe they've never refused. And the Compendium is the Copyright Office's opinion on the state of law but is not authoritative. They're not the legislative body, they are not a court. And we respectfully disagree with their view on that.
But you would need Copyright Office registration to bring suit in the United States if weren't for the fact that you have basically leaned on the photo being created in Indonesia to get around that requirement.
That's not necessarily the case. But the fact is that the photograph was not made in the States and the lawsuit is properly here on that basis.
How is this the proper venue? Slater lives in the UK. PETA is a Virginia corporation. And Naruto lives in Indonesia. So how is this in the Northern District of California?
Have you read the lawsuit?
I have read the lawsuit.
I just wanted to be sure because I could refer you to it. In the part about jurisdiction and venue... but specifically, Mr. Slater contracted with Blurb Inc., which is a publishing company based in San Francisco, to publish much of his work, including the monkey selfies, which he wrongly claimed copyright in. And that book contains the monkey selfies one of which is the cover of the book. So the infringing conduct is taking place in San Francisco. The book is available for sale and it is sold and shipped from San Francisco. That is why jurisdiction and venue is proper there.
How does an animal have standing in federal court on a copyright issue?
Well that's what we're arguing. It's clear that the Copyright Act provides protection for authors of original works and it's clear by Mr. Slater's own admission that Naruto is the author of this work. And so we are representing Naruto as his Next Friend because he, like, other parties, can't come to court on their own. But that is the issue that we believe Naruto should be given copyright protection in this photo in this case.
But why does PETA get to stand in as Next Friend here? Why not any other animal rights organization?
Well it's not just PETA. It's PETA and Dr. Engelhardt. And we are representing to the court the accurate circumstance: which is, we have his best interest at heart. The lawsuit seeks not only to have him declared the author and copyright owner, but it also asks the court to allow us, because we have the resources and the ability to manage the copyright licenses and provide that all of the proceeds, 100% of the proceeds, get used solely for the protection of Naruto, his family, his community, and habitat. These animals are critically endangered, the population has decreased 90% over the last 20 years, there are only about four to six thousand of them left and they realistically face extinction. They are being killed for foraging for food, and they are being killed for meat. So they're in desperate need of help and that's what we'd like to do with the proceeds from Naruto's photograph.
But there are plenty of other animal rights organizations and if someone jumps in first, they have as many reasons, given that they say they have Naruto's best interests at heart, to represent Naruto, and—if you had your prayers for relief granted—to manage his licensing agreements.
Well, that's ultimately for the court to decide but we believe PETA satisfies the test for Next Friend along with Dr. Engelhardt and we're presenting the case to the court on that basis.
So with all of these hypothetical animals, obviously Naruto is an interesting case because there aren't many of these… But there are a few instances (where, for instance, elephants create paintings) in which animals have created art and that art is under Compendium rules, not considered copyrightable under US law. What are you basically proposing is that these animals be given copyrights in their work, and whatever organization rushes into the gap first gets to administer those copyrights.
Well, there's several problems with your questions. First this case is only about Naruto and these monkey selfie photographs. I don't know the facts and circumstances in which those other works were created, and I don't know of any actual legal cases that have come down on that. And I've already covered that we respectfully disagree with the US Copyright Office's opinion in their Compendium. But the facts are indisputable that Naruto took these photographs as his free autonomous intentional act that resulted in the original works fixed in a tangible medium. And that's what the Copyright Act provides protection for. And so he should get that protection and the corresponding benefit for him and his habitat and their population because of the danger they face they need all the help they can get.
Does Naruto know about this lawsuit?
Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly. The issue is as I've stated it.
Does Naruto know about his selfies?
I have the same response.
Naruto certainly knew at the time that he was engaged in intentional conduct that is obvious from Mr. Slater's own description of the situation. And Naruto clearly engaged in the purposeful intentional conduct that resulted in the creation of the selfies.
If Naruto, as you say, intentionally aimed the camera at himself, but—and here, you haven't quite answered my question—let's say he doesn't know the selfies exist—could it be that he intentionally made a selfie?
Yes, of course, the fact that someone engages in particular conduct that results in original work of art that is protectable under the copyright is sufficient. So, I have answered your question, with respect.
So you saying that you think Naruto knows these selfies exist, because he—
That's not what I'm saying and you should not report that. What I am saying is, alleged in the lawsuit, that Naruto engaged in a series of purposeful, intentional actions. He is very bright. He was aware of the cause and effect relationship between pushing the shutter, his reflection in the camera—this is all admitted by Mr. Slater. The result of his conduct, the original works fixed in a tangible medium, resulted. And that is sufficient for copyright protection.
Can a photographer intentionally create a photo if they don't know how a photo results from a camera?
Yes, of course.
Like if I took a machine and I didn't know what it was for, and I fiddled with it, intentionally knowing that this is what someone was doing with it, but I didn't know what the output was going to be because I had never seen the output, could it be that I intentionally created that output?
There are all kinds of different hypotheticals, but this case is about what we know and the facts that are laid out in the lawsuit, and that is what I've already said and will repeatedly say: which is that Naruto engaged in a series of intentional acts, and understood the cause and effect relationship of his actions, and his reflection in the camera… it is acknowledged by Mr. Slater numerous times. And the result of that conduct are the monkey selfie, which we believe he should be the author and copyright owner.
If the photos were not created in Indonesia, and this was a different case, but with the exact same facts, but that the photos were not created in Indonesia but in the United States, is it true that you wouldn't be able to bring this lawsuit?
Hypothetical legal questions are not a concern. The issue is what are the facts of this case, and they are as laid out in this lawsuit.
So an animal with similar capacities to Naruto… would you be fighting for their copyright rights in court? If their creations were created within US jurisdiction?
Again, this is one of innumerable types of hypotheticals you could raise, and my answer is the same.
Well, thank you very much for your time.
Have a good afternoon.