A US appeals court has debated whether or not a monkey can own the copyright to a “selfie” while the photographer whose camera captured the famous image watched a livestream of the proceedings from his home in the UK.
David Slater could not afford the airfare to San Francisco to attend the hearing on Wednesday. Nor can he afford to replace his broken camera equipment, or pay the attorney who has been defending him since the crested black macaque sued him in 2015, and is exploring other ways to earn an income.
“I’m trying to become a tennis coach,” Slater said by phone on Wednesday from his home in Chepstow, Wales. “I’m even thinking about doing dog walking. I don’t make enough money to pay income tax.”
Making a living as a freelancer is tough for any photographer, but for Slater, economic stability was once tantalizingly within reach.
“Every photographer dreams of a photograph like this,” he said of the image of a primate grinning toothily into the lens. “If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket … The proceeds from these photographs should have me comfortable now, and I’m not.”
Instead, Slater has been embroiled in years of arcane legal wrangling over the nature of authorship and said that he is “seriously on the verge of packing it all in”.
The story of the monkey selfie begins in 2011, when Slater traveled to Sulawesi, Indonesia, and spent several days following and photographing a troop of macaques. Slater has long maintainedthat the “selfies” were the result of his ingenuity in coaxing the monkeys into pressing the shutter while looking into the lens, after he struggled to get them to keep their eyes open for a wide angle closeup.
“It wasn’t serendipitous monkey behavior,” he said. “It required a lot of knowledge on my behalf, a lot of perseverance, sweat and anguish and all that stuff.”
The photographs became popular, and Slater said that he earned a few thousand pounds – enough to cover the cost of the trip to Indonesia. But the images became the subject of complicated legal dispute in 2014, when Slater asked the blog Techdirt and Wikipedia to stop using them without permission.
The websites refused, with Wikipedia claiming that the photograph was uncopyrightable because the monkey was the actual creator of the image. The US Copyright Office subsequently ruled that animals cannot own copyrights.
Then in 2015, People for the Ethical Treatment of Animals (Peta) filed a suit against Slater on behalf of the macaque, which it identified as a six-year-old male named Naruto, claiming that the animal was the rightful owner of the copyright. A judge ruled against Peta in 2016, saying that animals were not covered by the Copyright Act. Peta appealed to the ninth circuit court of appeals, which heard oral arguments on Wednesday.
Among the points of contention were whether Peta has a close enough relationship to Naruto to represent it in court, the value of providing written notice of a copyright claim to a community of macaques, and whether Naruto is actually harmed by not being recognized as a copyright-holder.
“There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto,” said Judge N Randy Smith. “What financial benefits apply to him? There’s nothing.”
At one point, Judge Carlos Bea considered the question of how copyright passes to an author’s heirs.
“In the world of Naruto, is there legitimacy and illegitimacy?” Bea asked. “Are Naruto’s offspring ‘children’, as defined by the statute?”
For Slater, it was a painfully ironic line of questioning in light of his concerns for his own seven-year-old daughter and his continuing belief that the copyright is his. “I can’t afford to own a car. There’s no camera equipment for her to inherit if I die tomorrow,” he said. “She should inherit this [copyright], but it’s worthless.”
The lawyer for Slater’s publisher, which is also a defendant, also raised the question of whether Peta has even identified the right monkey – something that Slater disputes.
“I know for a fact that [the monkey in the photograph] is a female and it’s the wrong age,” he said. “I’m bewildered at the American court system. Surely it matters that the right monkey is suing me.”
The one consolation for Slater is that he believes that his photograph has helped to save the crested black macaque from extinction.
“These animals were on the way out and because of one photograph, it’s hopefully going to create enough ecotourism to make the locals realize that there’s a good reason to keep these monkeys alive,” Slater said. “The picture hopefully contributed to saving the species. That was the original intention all along.”