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Thursday, November 30, 2017

Monkey Selfie Legal Chuckle Appealed

In 2015 animal rights group People for the Ethical Treatment of Animals (PETA) filed a copyright infringement lawsuit on behalf of the macaque who took the infamous “monkey selfie,” claiming the animal is the legal owner of the photo. With the help of an intellectual property law firm it filed suit against the nature photographer whose camera was grabbed by a curious monkey and used to snap a picture of the ape's big toothy grin. The picture became a viral hit in 2011.

PETA claimed that the macaque, named Naruto, has the same authorship rights in the photo as any human would, meaning that the nature photographer infringed those copyrights by republishing it in a book about the infamous photo. The suit claimed that “Had the Monkey Selfie been made by a human using the unattended camera, that human would be declared the photographs’ author and copyright owner while the claim of authorship by species other than homo sapiens may be novel, 'authorship' under the Copyright Act … is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto… Naruto authored the picture through his independent, autonomous actions in examining and manipulating the unattended camera and purposely pushing the shutter release multiple times, understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.”

In 2016 a California federal judge issued a written ruling explaining his decision to toss the PETA "monkey selfie" lawsuit. He ruled there was no indication that Congress believed nonhuman animals could be authors that have standing to sue under the Copyright Act. The Judge noted "The Copyright Office agrees that works created by animals are not entitled to copyright protection … It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014." A picture of Naruto’s Selfie was used as the example by the Copyright Office.

Following the Judges decision, PETA's general counsel claimed the group would "continue to fight for Naruto and his community, who are in grave danger of being killed for bush meat or for foraging for food in a nearby village while their habitat disappears because of human encroachment." And fight they did with an appeal to the Federal 9th Circuit Court of Appeals.

During oral argument before a Ninth Circuit panel one of the judge pressed the PETA attorney on how an ape has been harmed by the alleged copyright infringement of a famed monkey selfie, “There’s no way for the monkey to acquire or hold some money, there’s no loss to reputation. There’s not even an allegation that the copyright could have benefited somehow Naruto. What financial benefits apply to him? There’s nothing."

To the relief of all, PETA agreed in September 2017 to drop the infringement claims and in return, the nature photographer will pay 25 percent of any future proceeds from the "monkey selfie" toward related conservation charities.

Common Sense Counsel: Be careful not to let your pet click the selfie.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA He can be contacted at or 334-246-2901. Blog at