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Monkey See, Monkey Sue? A Primate Copyright Fight

By George Khoury, Esq. on July 17, 2017 | Last updated on March 21, 2019

If you put a million monkeys at a million typewriters, eventually, you'll be sued by PETA. However, if one of those monkeys types "it was the best of bananas, it was the worst of bananas," and you publish that breakthrough in random text generation without the monkey's permission, will that monkey be able to sue you for copyright infringement? PETA thinks so.

Currently, whether a primate can even hold a copyright is being decided by the Ninth Circuit Court of Appeals. Spoiler alert, the court is more likely than not going to say no. People for the Ethical Treatment of Animals (PETA) filed a lawsuit over the now world-famous macaque selfie back in 2015. PETA is seeking a court order not just awarding the copyright to the primate, but also wants to be authorized to control the proceeds earned from the photograph, on the animal's behalf.

Ninth Circuit, Not Circus

While the Ninth Circuit often catches quite a bit of grief over its allegedly liberal leanings, never has the phrase Ninth Circus been more apropos. Sadly for the justices, Naruto, the artistic six-year-old macaque in question, did not appear before the court. However, the actual filing on behalf of the photographer that set up the monkey selfie contains some peculiar phrasing, including the following gem, pointed out by Ars Technica:

Under controlling 9th Circuit precedent, monkey see, monkey sue is not good law under any Act of Congress unless the legislative text plainly grants non-human animals standing to sue.

Prior to reaching the Ninth Circuit, a federal judge in San Francisco dismissed the case, explaining that animals (humans excluded) cannot own copyrights. The San Francisco federal judge further stated that if Congress and the president believe animals should be able to hold copyrights, "they're free, I think, under the Constitution, to do that."

Monkeys Can't Sue

More sophisticated readers might be wondering how, exactly, PETA can represent Naruto the macaque. Though he has proven skilled with a camera, he surely can't read, write, or speak, well enough to sign a retainer agreement. And even if he could, the law does not provide non-human animals and property the right to file lawsuits. While property may be protectable under the law, it is a person's rights to property that are technically being protected by the law.

Currently, the U.S. Copyright Office will not provide a copyright to works produced by animals or nature.

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