We previously wrote a blog entry on whether copyright protection could be obtained for a “Selfie”. A novel question of copyright law was raised in that blog entry regarding the ability of an Indonesian crested macaque, a type of monkey, to obtain copyright protection in photographs taken by the macaque. Earlier this year a lawsuit was filed by People for The Ethical Treatment of Animals, Inc. (“PETA”), on behalf of the macaque, seeking copyright protection for the photographs. In 2011, the macaque took several photographs of itself with a camera left unattended by photographer and defendant, David John Slater. The photographs included a “Selfie” which has now become known as the “Monkey Selfie.” Mr. Slater allegedly later reproduced the photographs in a book claiming that he was the author of the photographs.
Although the Copyright Act provides that an author of a copyright must be a human being, the lawsuit alleges that authorship under the Copyright Act “is sufficiently broad so as to permit the protections of the law to extend to any original work,” including one created by the macaque. Further, the lawsuit alleges that the photographs were taken by the macaque unaided and that the macaque deliberately used the shutter release button of the camera in order to take the photographs. The lawsuit is seeking for a declaration that the macaque is the owner of the copyright in the photographs and that Defendants have committed copyright infringement. If the requested relief is granted the lawsuit seeks an Order allowing PETA to administer the macaque’s rights in the photographs and that all proceeds from the sale or licensing of the photographs be used solely for the benefit of the macaque, which is part of a “critically endangered” species.
The Defendants recently filed documents seeking to dismiss the lawsuit. The Defendants’ motion to dismiss alleges that the lawsuit should be dismissed because the macaque lacks standing to bring a lawsuit for copyright infringement since the Copyright Act only contemplates protection for human beings and the macaque cannot suffer a concrete injury. The issue of whether an animal can be an author of a work subject to copyright protection appears to be a novel one. Further, even if the macaque is not entitled to copyright protection for the photographs, since the macaque allegedly took the photographs independently, copyright protection may not be available for the Defendants. If the Court decides that copyright protection is not available to either party the photographs will become part of the public domain and will be freely accessible to the public without the requirement to obtain a license. Please contact our office if you have any questions regarding the information in this article.
Daniel Devine, Esq.
Santucci Priore, P.L.
 See, Naruto by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., et. al. v. David John Slater, et. al., Case No. 15-cv-4324 at Docket Entry 1 (N.D. Cal. Sept. 21, 2015).
 See, Naruto by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., et. al. v. David John Slater, et. al., Case No. 15-cv-4324 at Docket Entry 24-28 (N.D. Cal. Nov. 6, 2015).