Lawyers often struggle trying to come up with novel legal
strategies to help their clients achieve their aims. However there must be some sort of award for creative
advocacy for the lawyers at Irell & Manella who represented Naruto, the now‑famous
macaque from Indonesia in the so‑called "monkey selfie" case. As anyone who follows this knows, Naruto is
the animal who used photographer David Slater's camera to take several
well-executed self-portraits. Slater, a
nature photographer understandably exploited the photographs, causing Naruto, or rather PETA on Naruto's
supposed behalf, to file suit to assert
a copyright in the work.
It is a
funny question but it does make one think about fundamental issues underlying
copyright law. One of the examples I always
use when I teach copyright law is to ask students to explain why photographs
are capable of copyright protection. The
answer must always depend on whether or not the image in question contains a
sufficient amount of originality. If a
monkey presses the button on a camera, is that an act of original expression? (See also the "monkey typewriter theory
hypothesis theorem" i.e. any monkey
with a typewriter …).
Interestingly,
the argument, as expressed in the plaintiff's brief in opposition to Slater's motion
to dismiss the lawsuit really doesn't address the issue as much as it takes on the Copyright Act's definition of
"authorship". The Copyright
Act defines the "owner" of a work as "initially" the
"author" of the work but does not define "author". This fact is curious in that the Act
explicitly defines nearly every other term but as courts have recognized, the
word "author" is actually used in the United States Constitution.
Since the
word "author" is not defined, Naruto argues that the Act cannot exclude
non‑humans and that animals should have equal standing as humans in terms of
their ability to create and protect their works. All of this may sound eccentric but the brief
is fascinating. It touches not only upon
works by animals but also computer-generated art and "divine works
of celestial beings". More
importantly it addresses the fact that before the Civil War, slaves were not
allowed to obtain patents because although they were clearly capable of
inventing things, they were not allowed to own property.
I don't
actually agree with the plaintiff's argument here (neither did the Ninth
Circuit) but I think the brief is compelling and something to consider as we
move into new areas of artificial intelligence and are confronted with new
questions as to what is and is not capable of copyright protection. Naruto may
be a trail blazer.
