Allegedly called “Naruto,” retracted its suit when Slater agreed to donate 25% of the royalties generated by the selfie to animal welfare organizations.
This case is a high-profile first salvo in an increasingly fierce battle between animal rights activists, defenders, and the free market. According to most reports, the case is about whether or not a macaque who took a selfie and gained global fame courtesy of Wikipedia has a copyright. This account is good as far as it goes. However, this case hints at how digital and animal culture pose profound challenges to the recognition of human individuality by the law.
Wikipedia is the first step in this story. Its “open-source” and “open-access” approach to information production has made it the ultimate market for knowledge in cyberspace. basically anything can be included on the pages of Wikipedia if it’s not prohibited by either its editors, which are mostly crowdsourced, or explicit legal rulings.
Slater complained that the editors of Wikipedia had violated his copyright by featuring the selfie. Slater took the selfie in Indonesia while his camera was running but not being watched. He was there on assignment to photograph rare monkeys. Wikipedia responded by saying that the macaque was the one who took the selfie if it had any copyright. PETA then got involved and sued Slater for copyright violation on behalf of Macaque.
Monkey Copyright
The court dismissed the case without hesitation, stating that animal copyright holders were not included in copyright laws. It also stated that the law could be amended in the future to include animals. It did this to avoid the question that PETA wanted to raise, namely whether the monkey had a moral right to any royalties Slater might have otherwise received as a copyright holder. This helps explain the out-of-court settlement that made Slater the official winner in the case. That was all he had left. Slater was earning tiny royalties for the selfie, and even approached bankruptcy while PETA’s case continued.
The case’s most notable feature is not that a monkey could have copyright but rather that the Internet’s unregulated market allowed the discussion to take place. Our perceptions of ownership are radically altered when a photograph is placed in a virtual reality as opposed to’real life. The recent spate of lawsuits involving the multiple postings on social media of nude celebrity self-portraits made this clear. In a world in which image control is paramount, defendants claimed that they had lost control of their image. In a deeper sense, the monkey selfie case is a reflection of what’s happening to human image.
Cyberspace has largely erased the distinction between consumer and producer. The monkey selfie case was able to equalize the playing field for humans and animals. A user can reframe and reappropriate an online object as they wish, unless the law steps in. These reappropriations and reframings include accounts of the objects’ origins. Slater was saved by the explicit exclusion of animals from the copyright laws, even though certain legal experts admitted Naruto might have behaved towards the camera in a manner that would allow a human to be eligible for copyright.
Marx and the macaque
Wikipedia, when confronted with Slater’s original claim of copyright infringement, gave little weight to the core argument Slater made, that if he hadn’t gone to Indonesia and photographed the macaques and set up the cameras so they could use them, the selfies wouldn’t have been taken. Slater, of course, was the one to allow the photos to be posted online.
Wikipedia instead focused on how the monkey was able to arrange the camera in such a way as to produce the stunning selfie. Wikipedia made Slater seem like an employer who claimed ownership of his employees’ labor because he put in the effort to start the business. It’s called human exploitation, when only humans are involved. Why not apply the same concept to macaques?
Wikipedia’s framing certainly resonates with history in the extension of human rights. Karl Marx helped us to understand that exploitation is a form of injustice when workers do not receive the full benefits of their labor. PETA pushed through the Wikipedia page that opened up a window to Marx. The capitalist response was that it is the employer who invests capital, creates the conditions for work and takes on the risk. Workers, who would otherwise be unemployed, should therefore be content with a stable wage and not a portion of profits. Slater’s defense is echoed here, with his claim that his photographs were part of a campaign to save macaques.
This dispute involves a disagreement over whether or not all creators are also producers. Marx won the argument historically in the human realm, mostly by appealing to an idea of the human being that was both universal and unique: all humans (but not only them) are both creators and producers. Marx, like today’s copyright laws, recognised that humans and animals have a distinct species barrier when it comes to creativity.
Cyberspace’s blurring the distinction between producer and consumer may open the door for a reimagining of “creator” in a more general sense, as the source behind whatever makes an item valuable to its users. The law could be amended to protect “creative animals” in the same way it has historically protected “creative workers”.
