Can the monkey selfie case teach us anything about copyright law?

• Author: Andres Guadamuz
• Position: Senior Lecturer in Intellectual Property Law, University of Sussex, United Kingdom

Mr. Slater claims that one of these images was an astounding, once-in-a-lifetime shot that captured an expression of pure joy and self-awareness on the monkey’s face. He imagined it appearing on the front of National Geographic, so he sent it and a few others to his agent, who then circulated them to a number of news sources. Eventually, it was first picked up and published by the Daily Mail as a feature story, and then went viral.

The spat with Wikipedia and others

However, the popularity of the photos, came at a price. In 2014, it triggered a dispute between Mr. Slater and Wikipedia when the online encyclopaedia uploaded the picture and tagged it as being in the public domain, reasoning that monkeys cannot own copyright.

When Mr. Slater tried to get the picture removed, Wikipedia did not relent, and the so-called monkey selfie is still listed on that site as public domain material.

Then, in September 2015, the campaign group People for the Ethical Treatment of Animals (PETA) sued Mr. Slater in a California court on behalf of the monkey (named Naruto in the suit) to assert copyright over the picture, claiming that the selfie “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Mr. Slater, resulting in original works of authorship not by Mr. Slater, but by Naruto.”

In January 2016, the trial judge dismissed the action on the basis that even if Naruto had taken the pictures by “independent, autonomous action,” the suit could not continue as animals do not have standing in a court of law and therefore cannot sue for copyright infringement.

Astoundingly, PETA appealed the dismissal, in the Court of Appeals of the 9th Circuit, and those following the case were treated to the spectacle of US Federal Court judges and lawyers making monkey jokes and discussing whether PETA had identified the right monkey.

Somewhat disappointingly, however, the drama was cut short as the parties reached a settlement out of court. While the exact terms of the settlement are unknown, lawyers for PETA have said that the deal includes a commitment from the photographer to pay 25 percent of all future royalty revenue to the monkey sanctuary where Naruto lives.

This would seem to be the end of the monkey selfie case, but in a recent interview Mr. Slater hinted that he is thinking of suing Wikipedia for copyright infringement. But where could this lawsuit take place?

Jurisdiction

The Naruto case took place in a California court because Mr...