According to the “infinite monkey theorem,” a monkey hitting keys at random on a typewriter keyboard for an infinite amount of time will almost surely type a given text, such as the complete works of William Shakespeare or at least a comprehensible original work. But, according to a United States federal district court judge, that hardworking primate could not copyright that work. Why? Because, as the court held in Naruto v. Slater, the “Copyright Act does not confer standing upon animals like Naruto,” who cannot be and “is not an ‘author’ within the meaning of the Copyright Act.” The Court made clear that the statutory use of the word “author” without further definition limited authorship to “persons” or “human beings.” The case was one that has been much discussed and in the public eye since the one-count (copyright) complaint’s original filing in September 2015, and the decision generated widespread reports in legal and popular press after it issued on January 28, 2016, including Judith Grubner’s thoughtful piece in last week’s ILN IP Insider looking at the implications of restricting authorship to humans in the age of artificial intelligence.
As noted in such coverage, the original complaint, and the opinion itself, the case arose out of allegations that Naruto, a six-year-old crested macaque monkey, took multiple photographs of himself (the “Monkey Selfies”) using defendant David John Slater’s camera. The complaint, filed by the People for the Ethical Treatment of Animals (“PETA”) and Antje Engelhardt as “Next Friends,” alleges that defendants Slater, Blurb, Inc. (the “publisher” of a book by Slater containing the Monkey Selfies), and Wildlife Personalities, Ltd. (a United Kingdom company that, along with Slater, “falsely” claims authorship of the Monkey Selfies) violated Naruto’s copyright by displaying, advertising, and selling copies of the Monkey Selfies. According to the complaint, Naruto is six-years old and lives in a reserve on the island of Sulawesi, Indonesia. He is “highly intelligent” and possesses “grasping hands and opposable thumbs with the ability to move his fingers independently.” Because the reservation where he lives is immediately adjacent to a human village, Naruto has encountered tourists and photographers throughout his life. He was “accustomed to seeing cameras, observing cameras being handled by humans, hearing camera mechanisms being operated, and experienced cameras being used by humans without danger or harm to him and his community.” “On information and belief, Naruto authored the Monkey Selfies sometime in or around 2011” by “independent, autonomous action” in examining and manipulating Slater’s 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.” The Friends allege that Slater has repeatedly infringed on Naruto’s copyright on the Monkey Selfies by “falsely claiming to be the photographs’ authors and by selling copies of the images” for profit. They claim that defendants have violated sections 106 and 501 of the Copyright Act of 1976, by displaying, advertising, reproducing, distributing, offering for sale, and selling copies of the Monkey Selfies. They allege that Naruto is entitled to defendants’ profits from the infringement and seek to permanently enjoin defendants from copying, licensing, or “otherwise exploiting” the Monkey Selfies and to permit Next Friends to “administer and protect” Naruto’s authorship of and copyright in the Monkey Selfies. As noted above, the District Court rejected the Naruto as author copyright claims, and dismissed the one-count complaint.
With such unique facts and widespread coverage, it might seem strange to describe the case as one lacking in publicity. Indeed, commentary has ranged from discussions like Ms. Grubner’s of the decision’s copyright law implications to philosophical musings on the nature of authorship and creativity to the moral rights of animals. But the title here is not referring to a lack of press coverage, dearth of commentary, or absence of notoriety–rather the title wonders why Naruto—or more precisely his litigation allies–did not claim that unconsented-to dissemination of his image violated his common law right of publicity. Such a claim could have avoided the statutory language and the Copyright Office policies the District Court found required human authorship.
In fact, because such a claim is no way dependent on who qualifies as an “author,” such a claim might have avoided dismissal of Naruto’s complaint. That is because the notion that the right of publicity extends beyond human beings has pre-existing legal support from no less a commentator than Melville Nimmer, who wrote in 1954 in an article entitled The Right Of Publicity that:
It is common knowledge that animals often develop important publicity values. Thus, it is obvious that the use of the name and portrait of the motion picture dog Lassie in connection with dog food would constitute a valuable asset. Yet an unauthorized use of this name could not be prevented under a right of privacy theory, since it has been expressly held that the right of privacy ‘does not cover the case of a dog or a photograph of a dog.’***[S]ince animals, inanimate objects, and business and other institutions all may be endowed with publicity values, the human owners of these non-human entities should have a right of publicity (although no right of privacy) in such property, and this right should exist (unlike unfair competition) regardless of whether the defendant is in competition with the plaintiff, and regardless of whether he is passing off his own products as those of the plaintiff.”
Interestingly, Nimmer was there quoting from the case of Lawrence v. Ylla, 55 N.Y.S.2d 343 (Sup. Ct. 1945), which enjoined third parties’ use of the photograph of the dog, despite having rejected any privacy basis under common law or statutory law. Thus, it seems that the injunction was based on protecting the right of publicity connected to the dog in question. The court evidently found it equitable to afford such protection.
The same could no doubt be said of Secretariat, American Pharoah, Cigar and any number of animals. In fact, it seems like there would be little doubt that the law would protect their owners’ rights to prevent others from economic exploitation of those animal’s identities and visages without consent, though such names are not always trademarked or images not copyrighted, at least by those owners. See Race Horses and Intellectual Property Rights: Racing Towards Recognition?, 17 Quinnipiac Law Review 207, 228-39 (1997). The question is whether next friends can assert the property right inherent in the name and image of an unowned or only collectively-owned animal like Naruto or Cecil the Lion in the same manner that the owner of a racehorse can assert such rights. Whether one comes at that question as a proponent of animal rights or, like the author, as one curious to examine creative legal arguments, it is an analysis worth considering.
It would be of some interest to examine how one might pursue such a claim in the United States, but the support for an animal’s right of publicity is there found not in case law but in commentary (like Nimmer who seems to support in more generally in The Right Of Publicity and McCarthy, who generally disfavors according the right to animals except in very limited situations. See Stacy Allen, Emilio B. Nicolas and Megan Honey, Non-Human Persons And The Right Of Publicity, 2008 MLRC Bulletin 61, 67 (fn. 30 and accompanying text) and 73-75). Still, the common law’s legal fiction that the state or the sovereign “owns” such animals ferae naturae and other wildlife within the relevant borders suggests that there is a legal entity that could assert property rights (such as publicity) as to them. Indeed, one commentator has even suggested that qui tam concepts cure both any standing issues otherwise curtailing assertion of animal rights and impediments to non-state, individual human actors initiating such claims. See Michael Merideth, Four Legs to Stand on: The Unexplored Potential of Civil War Era ‘Qui Tam’ Suits to Advance Animal Rights in the Federal Judiciary, 4 Seattle Journal of Environmental Law 188 (2014). There may be other “private attorneys general” concepts that could track a similar path as well.
An equally interesting inquiry would be to examine how one might pursue such a claim outside of the United States. For instance, one might consider bringing a claim:
- In Germany, where the “general right of personality” already includes control over one’s image and likeness and has been extended beyond individual human beings to non-human legal entities. See Susanne Bergmann, Publicity Rights in the United States and Germany: A Comparative Analysis, 19 Loy. L.A. Ent. L. Rev. 479, 502-503 (1999); see also Kateryna Moskalenko, The right of publicity in the USA, the EU, and Ukraine, International Comparative Jurisprudence, December 8, 2015, One might combine such analysis with the express statutory recognition in section 90 of the German Civil Code that “[a]nimals are not things,” see Jovanovic, Collective Rights: A Legal Theory, at 5, and the constitutional allowance in Article 20a of the Basic Law for “judicial action” taken “in accordance with law and justice” to “protect the natural foundations of life and animals…all within the framework of the constitutional order.”
- In India, where in 2000 the High Court in Kerala, ruled in in paragraph 13 of the opinion in Balakishnan vs. Union Of India, as to circus animals, “[t]hough not homosapiens, they are also beings entitled to dignified existence…” under Article 21 of the Indian Constitution, and to ask the question “if humans are entitled to fundamental rights, then why not animals?” a question the Court itself answered by stating that “Many believe that the lives of humans and animals are equally valuable and that their interests should count equally…Therefore, it is not only our fundamental duty to show compassion to our animal friends, but also to recognize and protect their rights.” While other Indian case law has refused to extend the right of publicity to corporations, that Court expressly did so because it would violate the protections of individual beings found Article 21 of the Constitution of India, the very same one the court in Kerala found extended rights to individual animals. Indeed, a court that said the following would seem receptive to Naruto’s publicity claims: “In our considered opinion, legal rights shall not be the exclusive preserve of the humans which has to be extended beyond people thereby dismantling the thick legal wall with humans all on one side and all non-human animals on the other side. While the law currently protects wild life and endangered species from extinction, animals are denied rights, an anachronism which must necessarily change.” See paragraph 13 of the opinion in Balakrishnan vs. Union Of India.
There are doubtless other jurisdictions where one may pursue such claims, and perhaps find a path to the successful assertion of a right of publicity/personality on Naruto’s behalf. It will prove interesting to watch.