The furore that erupted when David Slater, a British wildlife photographer, released a “selfie” taken by a macaque monkey in 2015 has only just reached legal resolution. The animal rights group, PETA (“People for the Ethical Treatment of Animals”), which had filed on behalf of the macaque, allegedly named “Naruto”, withdrew its suit against Slater when he agreed to give 25% of any royalties from the selfie to animal welfare charities.
This case marks a high-profile opening salvo in a struggle that will be increasingly fought among animal rights activists, protectors of human intellectual property and defenders of the free market. The case has been generally reported as being about whether a macaque that took a selfie (and gained worldwide notoriety courtesy of Wikipedia) is entitled to copyright. While this account is fine as far it goes, the case also hints at the profound challenges that digital and animal cultures pose to the law’s recognition of human uniqueness.
The story begins with Wikipedia, whose “open source” and “open access” approach to knowledge production makes it the ultimate free market in cyberspace. Basically anything is fair game for inclusion on its pages if it is not prohibited either by its own editors, who are largely crowdsourced, or some explicit legal ruling.
When Wikipedia’s editors decided to feature the macaque selfie, Slater claimed that it was in violation of his copyright. The selfie had been taken while his camera was active but unattended in Indonesia, where he was on assignment photographing the rare monkeys. Wikipedia replied by saying that if anyone owned the copyright, it was the macaque who actually took the selfie. At that point, PETA got involved, suing Slater on behalf of the macaque for copyright infringement.
The court had no problem dismissing the case, simply by arguing that copyright law was not designed to include animals as copyright-holders. But it also said that the law may be amended to include them in the future. In doing so, it tiptoed around the issue that PETA was keen on raising, namely, whether the monkey was morally entitled to whatever royalties might otherwise accrue to Slater as the copyright-holder. This helps to explain the out-of-court settlement, which left Slater the formal victor in the case. But that was really all that he was left with. Slater had been earning minuscule royalties from the selfie and even approached bankruptcy as PETA’s case against him dragged on.
The most striking feature of the case is not the very idea that a monkey might hold copyright, but that the internet’s relatively unregulated market environment provided the opportunity to broach the issue. The placement of a photo in virtual as opposed to physical reality radically loosens our intuitions about ownership. This became clear in the recent flurry of cases around the multiple postings of nude celebrity selfies in social media. Defendants claimed loss of control over their image in a world where image control is everything. In a more profound sense, something similar is happening to the image of the human being itself in the monkey selfie case.
The monkey selfie case managed to level the playing field between the human and the animal because the distinction between producer and consumer is largely erased in cyberspace. Unless the law intervenes, an online object can be reframed and reappropriated as the user wishes. And among these reframings and reappropriations are accounts of what makes the object what it is. In the end, only the explicit disqualification of animals from copyright law ended up saving Slater, even though some legal experts admitted that Naruto may have behaved toward the camera in a way that would make a comparably situated human eligible for copyright.
Marx and a macaque
Faced with Slater’s original claim to copyright infringement, Wikipedia interestingly gave little weight to the core of Slater’s argument, which was that had he not gone to Indonesia, photographed the macaques and even set up the camera so that they might use it, the selfie would never have been taken. (Of course, Slater was also the one who allowed the photos to go online in the first place.)
Instead Wikipedia focused on the particular monkey’s skill in arranging the camera so as to take the striking selfie. To the ears of animal rights activists, Wikipedia made Slater sound like an employer who claims ownership over his employees’ labour because he took the effort to set up the business for which they work. When only humans are involved, it’s called exploitation. Why not extend the same concept to the macaques?
Whatever may have motivated Wikipedia to pursue this framing of the situation, it certainly resonates with the history of extending human rights. Thanks to Karl Marx, we understand exploitation as a form of injustice that comes when workers are denied the full fruits of their labour. Wikipedia opened the door to revisit Marx, and PETA charged through it. The original capitalist rejoinder was that the employer is the one who takes the initial risk, invests the capital and sets up the environment which makes the work possible and so the workers, who might otherwise not be employed, should be satisfied with a steady wage, not a share of the profits. One hears echoes of Slater’s defence here, including his claim that his photography was part of an effort to save the macaques from extinction.
But bound up in this dispute is a disagreement about whether all producers are also creators. Historically, in the human sphere, Marx ultimately won this argument, largely by appealing to a conception of the human that is both universal and exceptional: all (but only) humans are both producers and creators. Like today’s copyright law, Marx recognised a clear species barrier between humans and other animals when it comes to creativity.
Cyberspace’s blurring of the producer/consumer distinction may be opening the door to reimagining “creator” more generally, as the source of whatever makes an object valuable to its user. In that case, the law may need to be adjusted to provide legal protection to “creative” animals in the same spirit as it historically provided protection to “creative” workers.