The Monkey Selfie Returns

When I was in law school, a final exam question presented a scenario involving a squirrel who falls into an open container of gasoline on private property, scurries to another property where a cinder from an outdoor fire ignites him, and then proceeds to run into a pile of dry leaves on the first property, ultimately causing the whole damn neighborhood to burn down. I was directed to “discuss liability.” After hitting all the expected theories of liability and defenses, I proceeded to discuss the rights and liabilities of the squirrel. I got an ‘A’ but the professor wrote in the margin of my squirrel discourse, in giant red letters, “We need to talk!” When I met with him in his office, he explained that he wasn’t sure if I was trying to make a mockery of tort law or if I was so truly insane that I actually believed animals have standing to sue to vindicate legal rights. I wish I could travel back in time and have a little chat with him now.

The “monkey selfie” saga began in 2011 when British nature photographer David Slater traveled to Indonesia and set up a camera on a tripod. He left the remote trigger accessible to a macaque monkey, who then proceeded to take “selfies” with it. Later, someone uploaded the images to Wikimedia Commons. Slater, claiming copyright infringement, demanded either payment for the photographs or their removal from the site. Wikimedia Foundation refused, asserting that the images are in the public domain because they were not created by a human being.

According to some British attorneys, the photographs may be protected by European intellectual property laws. The United States Copyright Office, however, has issued a statement that works created by non-human animals, including monkeys, are not protected by copyright.

People for the Ethical Treatment of Animals (PETA) then entered the fray, filing a lawsuit in federal court against Slater and others for infringing the monkey’s copyright. Naturally, PETA also asked to be put in charge of administering proceeds from the photographs.

In 2016, the federal district court judge dismissed the lawsuit, adopting the U.S. Copyright Office’s position that copyright protections do not extend to non-human animals. PETA appealed the decision to the 9th Circuit Court of Appeals. Oral arguments were heard on July 12, 2017. According to reports, Slater has gone broke defending against the lawsuit.

So, Professor Goldberg, is PETA making a mockery of tort law or are their attorneys insane for believing animals can own property? What do you think?