This
follows an earlier post (Sept. 24, 2015): A monkey named Naruto filed a lawsuit, with a lot of
help from PETA, to claim copyright ownership in a selfie he’d taken and that
went viral. Naruto sought in his legal claim to have himself named the copyright
owner and the beneficiary of the proceeds from the photograph to benefit him
and his fellow monkeys on the preserve where they lived.
As
could have been predicted from my earlier post, on January 6, 2016 the monkey’s
claim was bounced out of court. The federal judge in San Francisco ruled that a
monkey, or any other animal for that matter, cannot “author” a work of art
under copyright laws, much less be the owner of the resulting copyrighted work
entitled to collect royalty checks from its exploitation.
Apparently
the judge decided the case based on, of all things, a simple reading of the
Copyright Act which, it’s true, nowhere suggests that animals can own copyrights. As the judge reasoned, consistent with the
case of Cetacean Community v. Bush,
brought by whales and dolphins seeking legal benefits and protections different
than copyright, Congress has the power to ensure that animals are covered by laws
it passes, but it consistently chooses not to do so.
I’d
like to think that if I’d been given a chance to argue this case, there might
have been a different outcome. Taking a page or two from The Hot Monkey Love Trial, I think the judge might have been
persuaded with a more genetic and less legalistic argument. It would rely on
common sense and wouldn’t arbitrarily place so much darn stock on what the
Copyright Act actually says or doesn’t say.
Here
is the summation of my argument: “It’s a fact that genes of humans and monkeys
are more than 98% identical. I mean, like, that’s just for starters, right out
of the genomic gate, no questions asked. Not enough evidence? Really? Suppose
then, your Honor, someone had inserted one nefarious but unique human gene
into Naruto’s in vitro fertilization, closing the narrow gap even more, would
your answer be the same? How about two such genes?
Try
as you may, your Honor, to remain firm in your opinion and to refrain from
slipping. But be forewarned, because that slope you’re on is lined with banana
peels….”
