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Court says no more monkey business

An American court has ruled there can't be any monkey business involved in the country's copyright laws, says Toronto business lawyer Bill Northcote.

The U.S. Court of Appeals for the 9th Circuit recently found that American copyright laws do not allow a monkey to hold copyrights, says Northcote, chair of Shibley Righton LLP's business law group. 

"From a copyright perspective, the most important point in the case is that the monkey doesn't have statutory standing," Northcote says. In other words, copyright law only covers humans.

The two sides battling over the photos reached a settlement in September and asked the 9th Circuit to dismiss the case and throw out a lower court ruling in favour of the photographer whose camera was used to take the photographs, according to an Associated Press story. 

"The decision really says they want the litigation to proceed," Northcote tells AdvocateDaily.com.

The court suggested the settlement was a way for PETA to avoid a precedent it may not like, he says, adding that the case was precedent-setting because it dealt with an issue not previously looked at — whether a non-human can own a copyright.

Northcote says the court's decision was "pretty critical of the role that PETA played because it really was pursuing its institutional interests rather than interests as the best friend of the monkey."

He notes there's evidence in the ruling that the court had reached a decision before a settlement was reached and decided to vacate that deal.

"At least two of the judges thought it was sufficiently important in the development of the law that they should issue this judgment in the public interest," says Northcote.

The court said a decision in this "developing area of the law" would help guide lower courts, says the Associated Press

The case centres around a “selfie” taken in 2011 by a Macaque monkey in Indonesia using the camera of a British photographer.

According to an article in The Telegraph, the photographer was taking pictures of a group of monkeys when one named Naruto grabbed his camera and snapped off hundreds of pictures. While most were out of focus, the animal did manage to capture some incredible images in the process, including the infamous monkey's self-portrait.

The stunning selfie went viral and the photograph landed in Wikipedia's royalty-free database. The photographer asked the site not to use the photograph without his permission, but Wikipedia refused, arguing that he didn't take the picture and therefore, it cannot be copyrighted, says The Telegraph

The People for the Ethical Treatment of Animals (PETA) then filed a copyright infringement lawsuit in 2015, claiming proceeds from the image should be donated to preserve the monkey’s habitat in Indonesia, that the photographer infringed on Naruto's copyright when the animal's picture was printed in a book, and that the organization was the guardian of the monkey's rights in the photograph, says an article in the Washington Post.

The appeal court found "the animal had constitutional standing but lacked statutory standing to claim copyright infringement of photographs known as the 'Monkey Selfies,'” according to the article.  

The ruling emphasized that while Congress authorized “next friend” lawsuits on behalf of habeas petitioners and for children or incompetent persons, the legislative body did not extend that right to animals, says the Post.

"Our precedent on statutory interpretation should apply to court rules as well as statutes: if animals are to be accorded rights to sue, the provisions involved therefore should state such rights expressly," the 9th Circuit Court found.

An animal "could have legal rights in other areas" but not have copyright ownership, Northcote says. "Copyright is entirely the creation of a statute."

One element of copyright is the ability of the owner to commercially exploit it, and if the monkey were, for example, the owner of the photograph, he wonders how the animal would make money from the image.

"Copyright law is quite similar in many countries," Northcote says. "In fact, there's an international treaty that recognizes that if you're a copyright owner in Canada, then you are recognized in other countries. The broad outline is similar around the world."

Northcote offers advice to anyone who may find themselves in a similar situation.

"I would advise them to do some post-capture editing — crop it, manipulate the colour, lighten or darken certain areas of the photo," he says. "I would try to rely on that as creating some copyright in what's called derivative work."

He says he would then carefully control the distribution of the work.

"I would have a licence agreement that would limit users in what they could do with it. I would say don't post it on places like Wiki, where it could be reproduced widely,” Northcote advises.

"There are technology controls like putting a digital watermark on it so you can track where it's being used," he says.

Northcote suspects the issue will return, as animal law is a growing field.

"It is a fascinating area," he says.

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