monkey see, monkey sue


Right now, somewhere in San Francisco, a Federal Appeals Court – not one judge but three – is giving due legal consideration to whether a six-year-old monkey can sue a fifty-two-year-old wildlife photographer for violating his copyright. I shit you not. The 9th US Circuit Court heard forty-five minutes of submission and legal argument on this issue last week and will rule in a couple of months. Forty-five minutes? Forty-seconds should have topped and tailed the entire hearing. Counsel, let me get this right, you’re petitioning us for copyright infringement on behalf of a monkey? What are you, bananas? Next case, please.

We are none of us strangers to the lunacies of the American legal system; graduates suing their colleges because they can’t find a job; a patient who filed a $2 million case against a hospital saying its poor security procedures failed to prevent him raping another patient; a prisoner who sued himself to try to get a transfer to a mental institution and – far and away my personal favourite – the man who died at Sea World, Florida, after he hid from security guards so he could swim with a Killer Whale. His family sued Sea World for failing to display public warnings that the Killer Whale could actually kill people.

And this one – sadly – is another for the ages. In case you missed it, ‘Naruto versus Slater’ is the story of a self-serving charity called PETA (‘People for the Ethical Treatment of Animals’) who’re suing a British wildlife photographer, David Slater, for the copyright to pictures he took in Indonesia six years ago of a macaque called ‘Naruto’ or, to be accurate, ‘selfie’ pictures the charity claims Naruto took himself. For anyone who thought American gullibility reached an apotheosis with the election of Donald J Trump, think again.

There is some common ground in this case. No one disputes that Slater spent a week at his own expense in the Tangkoko Reserve in Indonesia taking pictures of a troop of crested, black macaques in 2011, which included setting up a tripod and camera and somehow coaxing one of the monkeys to take selfies. What PETA’s arguing – still arguing given it lost the original case and is now appealing – is that since the monkey pressed the shutter, the monkey owns the copyright. Forgive me, but what are we saying about a legal system that’s not only prepared to listen to this tripe but which allows it to pass to appeal?

Where do we start? How about with what, precisely, is PETA’s standing in this case? Did Naruto ask them to act on his behalf? And if not, what authority do they have to represent his interests? And given Naruto is a resident of Indonesia, how does the American legal system have jurisdiction over his alleged copyright? Could I, for example, submit a similar case in Bulgaria or Ghana and make my own claims on Naruto’s behalf?

And just suppose, for the sake of argument, PETA were to win the case and the copyright royalties were deemed to belong to Naruto. Would they be paid into his bank account? What, in peanuts? And if they were – instead – paid to PETA, why would the charity think it had the right to spend the cash ‘on the preservation of macaque monkeys’? The money’s Naruto’s. He might fancy blowing the entire bundle on loose women, fine wines and a skiing holiday in the French Alps.

What’s astonishing is that this case ever made it into a courtroom in the first place. It falls flat on its face at the first fence given the US Copyright Office decreed last year that – surprise, surprise – copyright protection doesn’t extend to animals. Pig-headedly, counsel for the monkey argued that photographs can be copyrighted and Naruto ‘in the broadest sense’ was the author of these particular pictures. Counsel for David Slater, Andrew Dhuey, argued that PETA was engaging in nothing more than a grandstanding publicity stunt and that Naruto had made a huge tactical mistake by not appearing in court. ‘It’s like he doesn’t even care’, he said, which is comfortably the best line I’ve heard from a lawyer in many a long year.

What’s also unclear – ridiculously so given we’re in a court of law – is the identity of the monkey. One doesn’t wish to appear racist but one punk-haired, amber-eyed, switch-nosed, rubber-eared, crested black macaque can look pretty much like any other. So the monkey PETA claims is a male called Naruto is actually, according to David Slater, a female called Ella. ‘Surely it matters that I’m being sued by the right monkey?’ said Slater. ‘I’m bewildered.’

We’re all bewildered not least by the behaviour of this seriously shabby charity. Challenged by David Slater to disclose how much of their public donations they’ve blown on lawyers, PETA declined to give a number saying only that its actions were ‘consistent with its charitable aims.’ Furthermore the primatologist PETA hired to stiffen its argument, a woman who knows this particular troop of macaques well, was – somehow, don’t ask – arrested at the behest of PETA’s lawyer for alleged criminal trespass and harassment, which is about as laughable an own goal as you could imagine.

David Slater is close to his wits’ end. He can’t afford the flight to America to attend the case and he says he’s seriously considering jacking in photography in favour of tennis coaching or professional dog walking, so long and arcane has this legal battle become. If he loses – or even if he wins and gets saddled with costs – he reckons he’ll be in serious financial trouble. As it is, he doesn’t make enough money to pay income tax.

Which, in itself, is a travesty. Slater, lets not forget, slogged to the outer edge of Indonesia at his own expense specifically to highlight the parlous state of the macaque who were ‘down to their last thousands’ and being hunted for bush-meat. ‘No one had heard of these monkeys six years ago,’ he says. ‘But the picture hopefully contributed to saving the species.’ Certainly the locals no longer shoot or eat macaques because ‘now they love them. They call them the ‘selfie’ monkey.’

Which brings us to the picture itself. Just how brilliant an idea was it to get the monkey to take its own photograph? It’d be impossible to think of a simpler or more ingenious way of highlighting the intelligence and personality of these amazing animals than setting up a fixed camera and enticing them to take selfies. ‘It wasn’t serendipitous monkey behaviour,’ said Slater. ‘It required a lot of knowledge on my behalf, a lot of perseverance, sweat and anguish.’ And, of course, creative thought.

PETA’s specious argument is that the creation of the image was an intentional and original act on the behalf of the monkey. Excuse me? Are we seriously suggesting that Naruto popped out to ‘Dixons’ to buy the gear and enrolled in a photography course to learn about focus and exposure? No? Well, since when did pressing a button to take a picture confer authorship, the more so if you’ve no awareness of what you’re doing?

Put it this way, if David Slater had given Naruto a typewriter and the monkey had sat down and written ‘Pride and Prejudice’, then fair enough; the US Copyright Office might have to reconsider. But – self-evidently – all Naruto was doing was grinning at his reflection in the lens and pressing the button to make that funny shutter noise. Only a moron in a hurry – or a charity gasping for the oxygen of public exposure – would be stupid enough to claim that this constituted a valid claim for copyright. Sure, the monkey’s intelligent but it takes more than pressing a button to make you David Bailey.

And why exactly would PETA want to sue a man who shares their passion for wildlife and conservation; to beat him into the poor-house and drive him from a profession he loves and which he’s served with distinction? His one photograph has done more for the macaques already than PETA will ever achieve in this life or the next but instead of – who knows – joining hands with him, embracing him, working with him, they’ve chosen to try to beat him up in court. Shame on them and shame too on a legal system that’s connived in this nonsense and allowed them to do it.

16 JULY 2017

‘Wildlife Personalities’ by David J Slater –



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