Have you heard the one about the macaque who took a picture of herself? Turns out it’s no joke! The monkey selfie has caused quite a stir.
Odds are pretty good that you’ve seen the picture. It’s a pretty fantastic shot of a crested macaque taken in 2011. What’s most interesting about it is that, in typical modern style, the photograph is a selfie. While visiting Indonesia, nature photographer David Slater left his camera for the macaques to experiment with. One of them took to it like a natural, and snapped the infamous monkey selfie above (and probably about a million less well composed images, I’m sure).
This seemingly harmless and quite endearing interaction, in which a curious monkey took a series of photos of herself which then became a worldwide sensation, has since been mired in controversy. The problem is that the camera owner who says he made the photograph possible claims that the image belongs to him — that it is protected under copyright law. The Wikimedia foundation, on the other hand, has made the image freely available claiming it is under public domain. From their point of view, Slater is not the author of the image and so cannot claim copyright.
And what about the shutterbug herself? By standard application of copyright law, she would be considered the author of the image, if she were a person. Alas, she is not considered to be a person under law, and so (Wikimedia argues) there is no copyright claim on the images at all.
The issue got a whole new round of media attention recently when PETA launched a lawsuit, attempting somewhat bizarrely to claim that royalties from the image should go to them, for the benefit of the macaques in Indonesia.
Unsurprisingly, that court case failed. The United States Copyright Office has ruled that animals cannot hold copyright, and the judge in the 2016 ruling in the PETA case agreed. Some commentators have misinterpreted the significance of that decision, apparently thinking that because Slater was denied copyright to the image, that somehow the rights of the macaque who actually took the picture were vindicated.
In fact, the opposite is true. Slater’s copyright claim was denied not for any reason having to do with animal rights, but because the work was not produced through his own creative activity. It was, pretty much everyone agrees, the monkey’s actions which created the image. So much the worse for Slater. But PETA’s lawsuit failed, predictably, because in order to claim copyright one must be legally a person. And only humans are granted that privilege.
And to most people, that’s just laughably obvious. But not long ago, in this society, women also weren’t considered legally persons. And certain men would have considered that notion to be laughably obvious, too. Human children still aren’t considered people. For a very long time, white Americans didn’t view Black people as legal persons, either. It always seems to be for the same reason: to be a person, you have to be sufficiently intelligent. And those who considered themselves people were always convinced that they were rational, intelligent, and worthy, while those they exploited and abused simply were mentally inferior.
They say that while history may not repeat itself, it rhymes. One wonders how far human ethics and the concept of personhood can spread. It certainly seems to be expanding. Ecological consciousness is, at least for Westerners, a novel concept, and certainly our modern understanding of evolutionary biology and genetics makes it increasingly difficult to maintain the belief that we are separate from all other living things. Just as overt racial and cultural chauvinism have faded considerably (though they certainly aren’t extinct), perhaps we can imagine a day not far off when our legal systems will recognize the inherent worth of all animals, even those which don’t look and act just like us.
The growing recognition of animals rights is a great step in this direction. Maybe a monkey can’t hold a copyright, but maybe someday we will understand that they are people. Just look at her eyes!