Monkey see, Monkey sue? Legal Strategy

When animals start bringing lawsuits, one begins to wonder about the legal system. This one (pictured above) sued in Federal Court in California. Some of us question the legal strategy behind it. Isn’t there a better way?

How it Began

“A monkey, an animal rights organization, and a primatologist walk into federal court to sue[.] Monkey see, monkey sue is not good law[.]” This was part of the opening in the response to PETA’s filing in Naruto v. Slater. Naruto is probably (see below) the crested macaque pictured in the famous “Monkey Selfie” photo. People for the Ethical Treatment of Animals (“PETA”) is the animal rights organization referenced. The primatologist is Dr. Antje Engelhardt, Naruto’s purported “next friend”. (A “next friend” is someone who can sue on your behalf. More on this below.) Slater, the defendant, is David Slater, a photographer.

This case arose from Slater’s journey into Indonesia. He set up a remotely triggered camera in the jungle. Naruto, or a different macaque named “Ella”, depending on whom you believe, photographed itself with the camera many times in a series of adorable pictures. These pictures became known as the “Monkey Selfie” pictures.

Who owns the Pictures?

Naruto, PETA, and Dr. Engelhardt argued the macaque owns the pictures. Ordinarily, the creator of an artwork owns the art. When you take a photo, that photo is generally yours. When you draw a picture, that picture is generally yours. There are certain exceptions. For example, if you create a picture for your employer, or if you copy someone else’s, you may not own your work entirely. But what happens when an animal takes the picture? (There’s also this, though I don’t believe the elephant sued – yet.)

Without question, Slater didn’t trip the camera. The animal did. Yet the United States version of the copyright act doesn’t speak to animals owning property. So how can an animal own the copyright to a work of art?

Obviously, Naruto and Ella can’t file in federal court. That’s where Dr. Engelhardt came in. She, through PETA’s lawyers, claimed “next friend” status. A next friend is someone who takes on the mantle of another to assert rights on their behalf. Most often, this occurs in a parent-child relationship. Also common is a caregiver acting on behalf of a mentally ill person. In this way, the rights of the one needing care are still protected. One caveat is the next friend must act on the protected person’s behalf. Dr. Engelhardt and PETA therefore must act in Naruto’s interests. But does Naruto have the copyright, a form of property?

PETA, Dr. Engelhardt, and Naruto sued Slater and his publishing company (also a defendant) in an attempt to exercise (or even determine) Naruto’s rights. Did PETA make the right choice in filing suit? Since filing, Slater is broke. Dr. Engelhardt is no longer part of the case. PETA has taken a fair amount of press, good and bad.

Was PETA’s the Right Choice?

After all of this, I am left to wonder: Did PETA make the right decision? You can see PETA’s funding sources here. Time may tell if donations rise or fall based on this case. But one thing seems to be clear: Slater wanted to use some of the revenue to support the crested macaque’s habitat. Wouldn’t it have been substantially simpler to reach an agreement on this issue rather than sue? For example, couldn’t PETA have offered to create a charity in Slater’s name for the purpose of sustaining Naruto’s Indonesian territory?

Monkey Sue or Monkey Settle?

One alternative to filing suit involves mediation. Parties discuss their rights and interests through the use of a third-party mediator. Mediators are neutral. That is, they hold no stake in the outcome. We are trained to see the strengths and weaknesses in both sides. Then, we use those strengths and weaknesses to encourage settlement. This often happens in neighbor disputes, landlord-tenant disputes, and disputes involving family cases. We, as mediators, do not advocate for either side. If you need an advocate, hire an attorney. If you need help settling a dispute without going to court, you may want a mediator. Through this process, you can determine the outcome you are most satisfied with. Legal solutions rarely balance interests. It is usually all or nothing. Mediation and negotiation often allow the parties to actually split the baby without cutting the baby in half.

For you legal wonks, oral argument on the case is here. The case settled shortly after oral argument. Twenty-five percent of the profits will be used for the macaque habitat.