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Can an Animal Own a Copyright?

Selfie Ownership—Copyright is No Monkey Business


Naruto’s viral photo, not the blog author.

Can an animal own a copyright? What if the animal takes the picture? This exact issue came up when an Indonesian macaque monkey named Naruto took nature photographer David Slater’s camera and took several pictures—including a selfie that went viral.

Slater claimed copyright to the picture and, no surprise, the animal-rights activists disagreed. PETA, with others, even sued Slater for copyright infringement in federal court.  If you think this is some kind of “monkey business” joke, take a look at the complaint that argues Naruto should be granted copyright.

PETA’s Argument on Behalf of Naruto, and the Court’s Decision

PETA claimed, “Upon information and belief [I guess they did not take the time to ask Naruto], Naruto authored the Monkey Selfies by his independent, autonomous actions in examining and manipulating Slater’s unattended camera and purposely pushing the shutter release multiple times, understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.” Amazingly, that was written by someone with a law degree.

The federal court disagreed with PETA and ruled that the Copyright Act does not extend the concept of authorship or the right to sue to animals.  In its ruling, the court followed the prior Cetacean Community case on animal rights filed by the “self-appointed attorney for all of the world’s whales, porpoises, and dolphins.”

The Real Copyright Issue – What is Required for Ownership?

All joking aside, the case actually raises some real copyright issues. So what is needed to qualify for copyright protection? Three criteria must be met for copyright protection: (1) the work must be fixed in a tangible medium; (2) the work must be original; and (3) the work must have an author.

It looks like the classic Meat Loaf line “two out of three ain’t bad” applies to Naruto. Naruto’s photo is clearly fixed in a tangible medium (the photograph).  It also satisfies the low standard to be considered original—according to the Supreme Court, the work must “possess some creative spark, ‘no matter how crude, humble or obvious’.” While Naruto can create art, he does not qualify as an author.

What Happens to the Photo?

So what happens to this photo? Unfortunately for Slater, merely owning the equipment does not make him the author. With no author to claim copyright, the selfie is simply part of the public domain and can be used without permission by anyone.

So, if you have human DNA, here is the simple lesson for a selfie. The person that takes the selfie is the author for copyright purposes and not the owner of the phone/camera.

Protecting your copyrights, however, is no monkey business. HaasCaywood can help you protect your copyrights and other intellectual property.

Michael Caywood

Blog 1, June 2016

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