Copyright Law is no place for monkey business?!

Author: Maria Silvia Martinson, lawyer at RestMark METIDA

MariaIt can really be said that in 2011 a lot happened – it was the year of the Egyptian revolution, earthquakes in Japan and the Royal Wedding. Coincidentally, 2011 was also the year of the so-called „monkey selfies“, which have developed into a copyright case so significant it could even help determine the future of copyright protection in the context of artificial intelligence.

See examples of the monkey selfies here

The first question, of course, is how did the monkey selfies come to exist? In 2011, a wildlife photographer David Slater visited Sulawesi, Indonesia to take pictures of Celebes crested macaques. According to Slater, he set up his camera on a tripod, then left it unattended with the macaques for a period of time. A macaque named Naruto played with said camera and snapped a variety of pictures of himself, several of them blurry and unusable, but a few clear enough for Slater to publish them. The British photographer claimed copyright of the images and announced them as „monkey selfies“.

After publication, the selfies became a real internet sensation, being constantly reposted and shared online. The photos were also uploaded to Wikimedia Commons which is a media file repository that makes public domain and freely-licensed educational media content available. When information about this reached Slater, he referred to his copyright and requested the owners of Wikimedia Commons to either pay for the photos or remove them. The organisation rejected Slater’s claim and based their rejection on an argument that the creator of the photos is in fact the macaque depicted on them and thus copyright of the selfies belongs to noone. After this, Slater claimed that he has suffered significant financial loss due to the pictures being available in the repository and expressed an intention to sue Wikimedia Foundation.

However, the case currently being subject to court proceedings is not the previously described dispute between Slater and Wikimedia Foundation. As an interesting development, PETA (People for the Ethical Treatment of Animals) filed a lawsuit in the U.S. against Slater and on behalf of the macaque Naruto in 2015, claiming that Naruto should be deemed the author of the selfies. PETA had additionally promised to administer all proceeds from the photos for the benefit of Celebes crested macaques.

PETA’s general counsel Jeff Kerr stated that: „By granting ownership of the images to this monkey, the court could – for the first time in history – declare an animal the owner of property rather than a piece of property himself.“ PETA claimed that Naruto is the author of the selfies and the holder of copyright since the macaque intentionally picked up a camera, watched his reflection in the lens and pressed the shutter button to take pictures. On the other hand, Slater argued that he should be considered the author and holder of copyright because the monkey used his camera equipment and that Slater himself engineered and predicted the photos as it was his artistry and idea to leave the macaques to play with the camera.

Meanwhile, in 2014 the U.S. Copyright Office stated that works which are created by non-humans (including monkeys) are not subject to copyright. In 2016, the Naruto v. Slater case was decided by U.S. District Judge William Orrick who also concluded that the monkey is not an author within the meaning of the U.S. Copyright Act. PETA, however, appealed the aforementioned decision and the parties were able to submit further arguments on 12 July 2017 during a hearing before the U.S. Court of Appeals for the Ninth Circuit in San Francisco.

Although the final decision is yet to be made in this matter in the U.S., the case has brought forward several interesting legal aspects concerning the possibility of copyright ownership by non-humans in both the U.S. and Europe, including how Copyright Law could and should be interpreted in the context of artificial intelligence as they also fall under the „non-human“ category.

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