monkey.txt

Act One, Monkey in the Middle. So there's some places where animals almost never go, places that are designed by humans for humans. This act ends up in a place like that, but it starts about as far from there as you can get. Dana Chivvis explains.

Our story begins deep in the rainforests of Indonesia on an island called Sulawesi. A few years ago, the photographer David Slater traveled there from his home in England to photograph a troop of monkeys.

I'd gone a whole day just following them into the thick of the forest, through the tangles and the vines and the muddy undergrowth and the cobwebs and the poisonous snakes.

Oh, man.

You name it, I had to go through it. And it was just so amazing just to be like a monkey. I was a monkey honestly. I had met monkeys before, like I said, all over the world. And I know a little bit about monkey etiquette and showing your teeth-- not to show your teeth, not to stare them in the face. Yeah, this is one of the secrets, actually, of being able to get good photography is making the animal relaxed.

There was one shot David really wanted to get-- a full face portrait with a wide angle lens. But every time he got close to taking the shot, the monkeys would look away. So after two days of these near misses, he changed strategies.
He put his camera on a tripod and threw down some cookies to try to entice the monkeys over. He was hoping they'd get curious about the camera and start pushing the button themselves. They were curious. They were not pushing the button. So David attached a cable with a button on the end of it to the camera. The monkeys liked that. They started playing with it, putting it in their mouths, fighting over it.

And of course when it got pressed, they automatically looked into the lens. And the fact that it's going ch, ch, ch, ch, ch, it's monkey language.

They fired off a few shots. David reviewed them. They weren't bad, a little out of focus. So he adjusted the settings and put the camera back. The monkeys were into the whole project by now.
In fact, they were getting a little too excited. They almost knocked the tripod over. So David laid down on his stomach and stretched his arm out to steady the tripod with two fingers. A few other monkeys noticed their strange new friend lying full out on the floor and hopped onto his back.

So I had monkeys on my back whilst I'm trying to keep my camera from being knocked, while some monkeys, or two or three monkeys, are trying to play with the button. And all of a sudden, I heard the camera going off. And I didn't dare. I knew that if I looked up at them, they would probably look away. So I let them click it, click it, click it. And I sort of very carefully looked up to see them pulling these amazing contorted faces, like howling mouths, and the smiling mouth, and more besides.

The monkeys were taking selfies-- amazing, beautiful, weird selfies.

I just wanted it to go on forever really.

When David finally stood up and checked their work, he saw that the shots weren't just regular, old, everyday selfies. They weren't that guy at the gym taking pictures of his muscles in the mirror. These were next level, transcendentally good. They somehow escape the bounds of selfie and enter the realm of art.
There was one shot in particular that caught David's eye. The monkey's face is very close to the camera looking straight into the lens. It's hair perfectly coiffed. Eyes friendly, big and round and amber. All of which are nice details, and details are important. But the focus of this selfie, the main event, is the monkey's self-satisfied grin-- teeth that are too big for its mouth with gaps between them, a real grin, like he knows he's smiling for a picture.

I just saw it on the front cover of National Geographic or something like that. And I just thought, I need to get this to my agents.

David and his agents put out a press release about the selfies. They thought they could grab people's attention with the photos and then use the opportunity to send a message about conservation. And also they wanted to sell the pictures, of course.
These monkeys, crested black macaques, are considered to be critically endangered, which is just one step before extinct in the wild. They've lost 80% of their population in the last 40 years because of humans, which is why David went to Indonesia in the first place. He wanted to take photographs that would inspire us humans into caring more about these little monkeys, to stop killing them. The selfies didn't end up on the cover of National Geographic, but the British tabloids were interested. The Daily Mail was the first newspaper to publish the story about the selfies. This was in 2011.

Within an hour, it was all over your country, Australia, Germany. I was getting emails everywhere. My inbox went crazy. People wanting to know the story, wanted to use the image. Literally, my phone was hot with calls.

Over the next few months, the monkey selfies sold pretty well. David was licensing them to publications and selling prints. And then one day, he goes online to research the monkeys.

I started to just search crested black macaque one day in the Google. And there was Wikipedia, top of the list as always. I clicked on that, and there's my image. And I thought, where have they got this from? Have they been to Caters News Agency and paid a license fee for it?

They had not.

So I sent them a letter. Sent them a letter saying, I think you're using this without a license fee. Could you show me one, or would you pay? They wrote back, saying, this image we believe is public domain.

In other words, anyone could use it without David's permission, for free. To David, that was just stealing. He makes a living from selling his pictures. So it was really helpful to have one that was such a hit. But now, anyone could download it from Wikipedia and hang it on their wall or print it in their publication. Wikipedia's opinion is that information on the internet should be free. And David soon learned that they had decided the selfie was in the public domain--

Because the monkey pressed the button.

So the monkey was technically the creator of the photo. But in Wikipedia's assessment, monkeys can't own copyrights. Hence, the photo was free and fair for all to use. It belonged to the internet. David was baffled. He thought--

Well, surely I've got the copyright. I set it all up. I've got the intent. I had the creativity. All the monkey did is press the button.

Wikipedia includes a note below the photo, which reads, quote, "This file is in the public domain because as the work of a non-human animal it has no human author in whom copyright is vested." This decision of Wikipedia's, to declare the photo public domain, that was the opening volley in the monkey selfie battle to come. It was the moment when mother nature was shoved aside, and human nature, with its overstuffed baggage of laws and opinions and domination, took a seat.
David went on the offensive, assembled a team of lawyers, studied up on copyright law. He even looked into finding venture capitalists to fund a lawsuit against Wikipedia. Wikimedia-- that's the foundation that owns Wikipedia-- they just gave him the finger. This was at their big conference in London. It's called Wikimania. One of the founders, Jimmy Wales, was there.

I soon got to know, from the good Wikipedians out there, that Jimmy Wales and many of the delegates were mocking me by printing out my image on great big boards that were placed all over the conference facility. And Jimmy Wales and various other people were encouraging the delegates to take selfies with my selfie.

That's just mean.

There's quite a few of these images around the place on the internet, but the one with Jimmy Wales is particularly odious.

Wait. I want to look that up really fast here. Hang on.

Yeah.

Jimmy Wales monkey selfie.

Jimmy Wales Wikimania.

Here we go. Oh, yeah. Look at that. If you type Jimmy Wales monkey selfie into the Google, you'll find a photo of an adult male human holding his phone up in one hand and the monkey selfie in the other right next to his face. And he's got his lips puckered up like a duck.

He looks ridiculous. Now, is he-- is that face he's making-- is that--

Well, it's like a duck face. I don't know where that comes from.

I don't either.

But a lot of people seem to do this duck lips.

How did you feel when you saw that Jimmy Wales selfie with your monkey selfie?

So angry.

David was fighting Goliath. And then one day, the battle took on epic new proportions. It was like King Kong walked onto the scene, and now David had to battle him too. The dispute with Wikimedia had generated some press in the UK. And one day, David's wife was online.

There it was. Photographer being sued by a monkey.

You found out the monkey was suing you because your wife found it online.

Yeah. Just as I found out Wikipedia was stealing it because I stumbled across it, I also stumbled across the fact that I was being sued by a monkey.

The monkey in the selfie photos was suing him for copyright infringement with the help of PETA, People for the Ethical Treatment of Animals. David called his lawyers and said--

Look. Have you seen what's happening now? What can we do? And they said, Dave, this is clearly an April Fools'. Somebody is having you on. They said, just sit back. Let's see what happens. But do not respond to it. And you can't-- you've got nothing to worry about until you get served papers. Let's see what happens.

Right.

And sure enough, one afternoon I was at home. And there's a knock at the door. And a man in a black suit was standing in my porch way. I opened the door. He thrust a large A4-sized white envelope in my hand. And he says, I've been instructed to pass these to you. So I said, what are they?
And I opened it in front of him. And I took it out. And I said to him, do you know what this is? And he said, not really. I said, I'm being sued by a monkey. And I showed him. And he started laughing. And we had a little chat. Because he was just a local from a local firm down the road from me. And he went on his merry way.

I've read the complaint. It's kind of weird. You flip through pages and pages of legalese about copyright law. And then at the end when you get to the exhibits, it's just a bunch of monkey selfies, grinning, serious, howling monkey selfies-- like a legal document put together by Curious George. The monkey, whose name is Naruto, was suing David through his next friends, People for the Ethical Treatment of Animals.
The case is officially called Naruto, a Crested Macaque, by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., v David John Slater, an Individual. In legal parlance, next friend is a status like guardian. When someone can't represent themselves in court, the next friend can step in for them.

That's just the same as if it was a baby or a disabled adult who couldn't speak or represent himself.

I see.

That's not unusual in human law.

PETA has a reputation for pulling stunts to attract attention to the plight of animals. Once, they dumped horse manure on the sidewalk outside Gordon Ramsay's restaurant in London after a guest on his cooking show made a dish with horse meat. They made a comic book called Your Mommy Kills Animals and then handed it out to moms who were wearing fur coats at performances of the Nutcracker. They campaigned to change the word fish to sea kittens so that people would associate seafood with their adorable kitty cats and stop eating them-- the fish, I mean. But Jeff Kerr-- he's the general counsel to PETA-- he says this monkey selfie case is not one of those stunts.

We first saw the monkey selfie in approximately 2014 when the dispute between Mr. Slater and Wikimedia became international news. Our view was immediately that Naruto, who created the photograph, should own the copyright to it.

Jeff saw the dispute as this photographer wants to sue Wikimedia, and Wikimedia is claiming the photo is in the public domain. But who's standing up for the monkey?

That's what the law is. And our argument, very simply, is that that should apply equally to him, even though he simply happens not to have been born human.

But certainly the monkey didn't think like, now this is great. I've got a camera in my hands. I'm going to snap a couple frames and update my Bumble profile with whatever I get. The monkey's not thinking of it as, I'm taking a photograph here.

But that's not required under the copyright law. All that's required is that-- the copyright law simply provides that the author, the creator of the image, is entitled to own it. It doesn't say that the author has to know that he or she is making a photograph. If somebody gives you their camera and asks you to take a photograph, and you arrange them and you take the photograph, under those circumstances, you technically would own the copyright.

There are like 20 French tourists that I need to sue.
PETA is an American organization. And the case was to be heard in federal court in San Francisco. David talked to his lawyers in England. And they told him he needed to hire an American attorney and fight this.

I was advised by talking to these attorneys that I really did need to follow this through, because there would be a chance, an outside chance albeit, of it just going the monkey's way if I didn't challenge it.

The monkey would win?

Yeah. Well, it was in the court in California. And everybody has the opinion that anything can happen there. I don't know how true that is. But I was being told I can't take that risk. But of course--

Have you been to California?

Well, no.

It's kind of true.
David hired Andrew Dhuey to represent him.

Do you remember when you first heard about the case? Was it when-- did David call you? Is that how you first heard about it?

No, I read about it. And I don't remember where I read about it. But I got pretty excited when I saw that it was filed in San Francisco federal court because I'm right across the bay in Berkeley. So I thought, wow, I would be perfect for this case.

Andrew is an intellectual property lawyer. Works for himself. And when he read about the case, he reached out to David to ask if he could take it.

Why did you think you were perfect for the case?

Well, I think the case kind of lent itself to making monkey puns and things like that. And I just thought that would be-- I kind of like to do that. I like to joke around. I don't know if you've seen my LinkedIn profile. I'm in a Chippendales costume.

For his LinkedIn picture, Andrew chose a shot of himself wearing eyeglasses, a bow tie, and nothing else.

All these years-- I've been practicing for like 25 years, and I've never been able to joke around in anything I filed in court. So I was like, hey, this would actually be a case where I could do that.

That said, he's a real intellectual property lawyer. He's defended the toy company Wham-O, won an important case against Panasonic. And for Andrew, the case was a one banana problem. He answered Naruto's complaint with a motion to dismiss the case. Monkeys, he said, do not have standing to sue in federal court.
His argument is based on a precedent set in 2004 in a case called Cetacean Community v George W. Bush, in which all the world's whales, porpoises, and dolphins sued the president. All the world's whales, porpoises, and dolphins argued that the military's use of underwater sonar was hurting them, changing their natural behaviors, like eating and mating. Basically, sonar is just an incredibly loud sound wave.
So cetaceans, that's a scientific word for a category of marine mammal-- cetaceans flee when they hear sonar, sometimes even beating themselves to get away. In that case, the Ninth Circuit Court of Appeals decided that unless Congress explicitly states otherwise, animals do not have standing to sue in federal court. So that's the case Andrew pointed to in his defense.
But PETA hired an outside attorney to represent the monkey Naruto in court, a guy named David Schwarz. This guy, Schwarz, he comes from a fancy law firm in Los Angeles known for intellectual property law. Most of his case was an intellectual property argument that Naruto was the legal owner of the copyright because he was the one who made the photo.
But PETA also saw this case as an opportunity to nudge the law and set a precedent. They disagreed with the ruling in the cetacean case. They believe animals should have recourse in court.
Woman
Calling civil matter 15-4324, Naruto v David John Slater, et al. Counsel, please come forward and state your appearance.

This is a recording from the hearing in the federal district court in San Francisco. The judge asked Schwarz if he has an example of an animal ever being granted a copyright.

In the vast history of common law prior to the Copyright Act, was there-- do you have an example of where an animal was granted a copyright?

I do not have an example where an animal was granted a copyright. We could make the counterargument as to how other humans were denied protection under that law due to the color of their skin. One could see the contradiction in a statutory interpretation where we see that problem in the antebellum days. But when you look at the cornerstones of--

That's quite a stretch, Mr. Schwarz.

Just to pause on this for a moment. Yes, Schwarz is comparing a monkey's lack of copyright to chattel slavery, which is offensive and seems weirdly blind to the racist history of comparing black people and monkeys. Even Schwarz seems uncomfortable with it. He's saying that denying a monkey the right to own property because of its species is the same as denying humans the right to own property because of the color of their skin.

That's quite a stretch, Mr. Schwarz.

Pardon me?

That's quite a stretch. But go ahead.

And I certainly wouldn't make it the centerpiece of any argument here today. But it is fair to say that before the adoption of the 14th Amendment, the concepts of property ownership in the area of patents foreclosed the ability of a slave to claim ownership to a patent.

What's going on here is that PETA sees the monkey selfie case in the context of a larger end game. If they can get a court to agree that denying a monkey the right to own property is the same as denying a human the right to own property, that opens the door for the legal system to completely reconsider the legal status of animals. An animal would be declared an owner of property instead of just being property.
This isn't the first time PETA has tried an argument like this in the courts. In 2011, they sued SeaWorld on behalf of five orcas at SeaWorld Orlando and SeaWorld San Diego. Orcas are huge, 20 to 30 feet long. And they weigh about six tons. They typically travel around 75 miles in a day.
PETA said that keeping these orcas at SeaWorld in small concrete tanks against their will to perform for human entertainment, that was slavery. PETA lost that case. But SeaWorld has agreed to end its captive orca program after the last of their 27 orcas dies.
To understand why PETA is pursuing cases like these, you have to consider two very different pictures about how the world works. In one of them, humans are at the top of the food chain-- either because God wanted it that way, or because we figured out how to use our opposable thumbs so well that we could hunt and gather, and till the soil, and build cities, and create copyright laws. We make the rules for everything else in this world.
And the other picture-- and this is the one PETA has hanging on their wall-- humans are not at the top. Humans are just another mammal walking around on earth. And if we're going to give ourselves certain rights as humans, we should extend those rights to our fellow animals.

You guys are saying humans are not superior to other animals.

We're not. We are just another member of the animal kingdom. And it doesn't-- it's just prejudice and hubris that prevents us many times from seeing that.

This is Jeff Kerr again, the general counsel to PETA.

That property status is something that we think is just an abomination. Like Naruto, these animals are feeling, sentient beings. They should be entitled to fundamental legal rights beyond simply food, water, veterinary care, and shelter.

This idea that animals should have recognized, fundamental legal rights is not unprecedented. Three years ago in Argentina, a judge granted a habeas corpus petition filed on behalf of an orangutan at a zoo in Buenos Aires. She was being held in a tiny, crappy cage. The judge decided the orangutan had basic rights as a non-human person, including the right to freedom. And in New York state, an attorney is fighting to get the courts to recognize that two captive chimps, Tommy and Kiko, are non-human persons deserving of legal rights, just like corporations get.
The thing is-- David Slater, the photographer who's getting sued by the monkey, he agrees with PETA on this point. In fact, he used to defend PETA to his friends when they grumbled about the stunts. David even worked with them once on a campaign to protect wild hogs near his home in England.

That's one of the greatest shames on them is that they've attacked somebody who is trying to achieve the same goal as they are. Saving animals from suffering is a very noble cause. But I think sometimes they get carried away with their power.

Did the fact that this group that's sort of on your side was the one kind of attacking you or opposing you, did that make you stop ever and think, well, now, wait a minute? Do they have a point?

No. I've had to think very carefully about what my philosophy is. Because the book, my Wildlife Personalities book, that's part of the court case, I argue for animals having more fundamental rights, like dignity, and access to their ancestral forests, and access to food. So I am an animal rights advocate.

Naruto and PETA lost that first round in court. Andrew Dhuey called David to tell him the news.

We just took it very casually. We just said, yeah, of course. Of course that's going to get thrown out. Andrew Dhuey said this all along to me. There's no way that this is going to go anywhere.

And then the monkey appealed.

Good morning, Your Honors. And may it please the court, David Schwarz on behalf of the appellant.

The case went before three judges on the Ninth Circuit Court of Appeals. That's the court that ruled against Trump's travel ban twice this year. These judges are not messing around. Schwarz made it 30 seconds into his oral argument before one of the judges interrupted him.

Mr. Schwarz, before we get there, there's a preliminary question which I'd like you to address.

At this stage, the attorneys and the judges are going to debate case law. And the judges have a lot of questions for Schwarz-- the first being, how are you qualified to be Naruto's next friend? You don't know the monkey. And then a few minutes later, Judge Randy Smith interrupts Schwarz to grill him about injury. That's the legal term for harm or damage.
 Randy Smith
Well, what's your injury? There's no way to acquire or hold some money which the copyright would give. There's no losses to reputation. There's no even allegation that the copyright could have benefited somehow Naruto. What financial benefits apply to him? There's nothing.

But, Your Honor, the redressability issue doesn't necessarily turn on the compensation. It could be--
 Randy Smith
Well, I want to know what then is the injury. There's no case that says copyright infringement itself is injury. So what injury do we have?

Whatever the legal merits of this case are, there's just something really enjoyable about hearing lawyers throw around terms like redressability and compensation and injury when they're talking about a monkey.
 Randy Smith
I mean, if you give me a case that says copyright infringement itself is injury, I'll believe you. But I don't think you've given me one. What's your injury?

The judges and Schwarz volley over case law and legal precedent and the definition of author for 20 minutes before handing the floor to David's lawyer, Andrew Dhuey. And after two years of research and legal filings and oral arguments, Dhuey finally gets his wish to make a monkey joke in court.

Monkey see, monkey sue will not do in federal court.

After that, his oral arguments can pretty much be summed up as, you should throw this case out. And can you please make PETA pay my legal fees? Once Dhuey is done, Angela Dunning gets up. She's the codefendant's attorney. PETA also sued the self-publishing book company that David had used. So Angela Dunning gets up to deliver her defense, which is also pretty straightforward.
Angela Dunning
Naruto can't benefit financially from his work. He's a monkey.

 wasn't in court in San Francisco that day. He didn't want to spend the money to travel all the way to California from Wales. But he watched the whole hearing online.

When I watched it-- and you see three judges there. And then one attorney comes up, and then my attorney comes up, Andrew and then Angela, and they started talking about monkeys. It made it real all of a sudden.

That, yes, he was being sued by a monkey. Naruto didn't make it to the hearing either. He stayed in the rainforest in Indonesia. And to my knowledge, nobody asked him what he thought of all this. After two years, the humans managed to figure things out on their own. They told the appellate court they didn't want it to rule in the case after all.
And in September, David and PETA announced they'd reached a settlement. The details of the settlement are confidential. So I can't tell you much about it. But here's what I do know. David Slater still has the monkey selfie copyright registered in his name in two countries. And he agreed to donate 25% of the proceeds of the photos to protect the crested macaques.
About Wikipedia, they've still got the monkey selfie up there for anyone to download. They still claim it's in the public domain. David will have to sue them to get it taken down, which he says he plans to do.
There's just one other thing that should be mentioned about Naruto. There were a bunch of monkeys around when the selfies were being taken that day. And PETA consulted with the primatologist who works with those crested black macaques. She's the one who identified Naruto as the monkey in the famous selfie. But David says that's not right.

Naruto is a male. I distinctly remember it being a female. I distinctly remember that pink rump which the female macaques have.

Basically what you're saying is is that Naruto is making a fraudulent claim himself.

Yes. It's the wrong monkey in court.

He's taking credit for an artistic work that was actually made by a female monkey.

Yeah. And I think the feminists amongst us should start to protest.

I'm sure she's not the first lady monkey to have this kind of experience.
It's in the nature of both humans and monkeys to horse around in front of cameras. But it's a uniquely human characteristic to spend hundreds of thousands of dollars, years of our lives, to go to court over it.

 is one of the producers of our show. Coming up-- our first act was about a monkey horsing around. Next up, we have a horse monkeying around. That's in a minute. From Chicago Public Radio. When our program continues.