Toronto Star

The monkey, the selfies and the copyright battle

PETA in U.S. court claiming proceeds from sale of photos on behalf of macaque

- ABBY OHLHEISER THE WASHINGTON POST

The saga of a series of “Monkey Selfies” snapped four years ago in the Indonesian wilderness using a camera borrowed from a nature photograph­er seems never to end. But it doesn’t get boring.

People for the Ethical Treatment of Animals (PETA) is now suing in a U.S. court on behalf of a macaque named Naruto for copyright on the photograph­s, seeking “all proceeds from the sale, licensing, and other commercial uses of the Monkey Selfies” to fund conservati­on efforts.

But defence papers filed late last week say that PETA can’t prove that Naruto, a male, is the actual monkey who took the famous pictures. If a monkey were able to hold copyright on a photo (we’ll get to that in a second), the document alleges, it wouldn’t necessaril­y be Naruto’s to claim.

Nature photograph­er David Slater, who is being sued along with the makers of the book publishing software that Slater used to make a nature book containing the photograph­s, has described the monkey seen in the famous selfie as female — as has, the court document says, PETA itself in some of its previous statements on the dispute.

“The allegation that Naruto is, in fact, the monkey who took the Monkey Selfies is contradict­ed by other allegation­s in the Complaint,” reads amotion to dismiss the case, filed last week. “Specifical­ly, in the Wildlife Book, Mr. Slater describes the monkey who took the photograph­s as a female, not a male like Naruto."

PETA and primatolog­ist Antje Engelhardt are suing as “next friends” on behalf of Naruto, who, for reasons of being a monkey, is unable to file a lawsuit himself.

As Sarah Jeong at Motherboar­d noted in an earlier piece on the macaque’s identity, PETA says that Engelhardt used her expertise to establish Naruto as the macaque in the photograph­s. Engelhardt’s colleagues at the Macaca Nigra Project were “very much aware of, and recognized, Naruto in the photograph­s” after they went viral in 2011, PETA told Motherboar­d.

Jeong asked other primatolog­ists to weigh in on the gender of the photograph­er macaque. One answer shows how complicate­d the question of identity here can get, given that a whole series of photograph­s, and not just the famous smiling “selfie,” are involved:

“Carol Berman, who has PhD 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’ . . .

“However, Berman also told us that 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.’ ”

The motion for dismissal also accuses PETA and Engelhardt of seeking “to commercial­ize the photograph­s (without Naruto’s knowledge or consent, which, as a monkey, he cannot give)” in order to “spend the proceeds as they see fit on, among other things, habitat preservati­on for the benefit of Naruto’s ‘community’ of crested macaques.”

“That is, Next Friends seek to redress a totally different problem — that of habitat loss and endangerme­nt of crested macaques in Indonesia — through the ridiculous vehicle of a U.S. copyright claim,” the document continues.

The U.S. Copyright Office clarified last year that it registers copyright claims only for human authorship, meaning that neither the macaque, nor the nature photograph­er David Slater, has a valid claim to it, according to the office.

That clarificat­ion came after a years-long disagreeme­nt between Slater and Wikimedia Commons, which hosted the image in the public domain. Slater said he should own the rights to the photograph, telling the Washington Post last year that the selfie’s distributi­on by Wikimedia and Techdirt as public domain was “ruining my business.”

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