In one of their more absurd pieces of legal grandstanding PETA has for some years been insisting that the copyright to a photograph should belong to a monkey. On the grounds that it’s the monkey who actually pressed the button and that who presses the button is who owns the copyright. The basic problem with this being that this isn’t why we have copyright at all – it’s all entirely an invention to solve a basic economic problem. Any legal case about it therefore needs to be working to solve that same economic problem, not be the result of spouting some nonsense over the human rights of animals.
This is therefore the correct decision:
A monkey that took a selfie using a wildlife photographer’s camera cannot sue for copyright, a US court has ruled.
Naruto, a seven-year-old crested macaque, snapped a photo with a toothy smile in 2011 using a camera belonging to David Slater.
The British photographer wanted to have financial control of the photo – but an animal rights group filed a lawsuit in 2015 that sought to give Naruto copyright over the selfie instead.
Jeff Kerr, general counsel for People for the Ethical Treatment of Animals (PETA), said: “Naruto should be considered the author and copyright owner, and he shouldn’t be treated any differently from any other creator simply because he happens to not be human.”
Well, yes, he should be treated differently precisely and exactly because he’s not human. For not to do so is to ignore the very point of copyright itself – to change human behaviour:
Three years later, however, Slater’s ownership of the image was disputed by Wikipedia supremo Jimmy Wales and animal rights activist group PETA. Publication of the selfie on Wikipedia as a public domain work ensured Slater’s royalty income from the work disappeared.
The point of copyright being that it solves a public goods problem. A public good being, no, not something good for the public, not something the public thinks is good for them, not even a good enjoyed by the public. It’s something non-rivalrous and non-excludeable. We can’t stop someone using it and also the use of it doesn’t diminish the amount that can be used by others. A digital image is really pretty close to being a perfect example of this, a public good. Once taken it can be copied without limit.
The problem we’ve got with public goods is that their nature means that it’s horribly difficult to make a profit from their production. Thus, humans being the gelt and pilf greedy little bastards that we are we get fewer public goods than we think might be optimal.
The solution is to thus create, invent entirely out of thin air, a property right. A patent, a copyright, perhaps even a trademark, which makes the public good excludeable. We thus get more of them, gilt and pelf seeking, and thus we’re better off.
At which point, consider the monkey selfie case. If the monkey owns the copyright do we get more monkey selfies? Nope, we don’t. If the photographer who set the camera up so the selfies could be taken does, do we? Well, at least we might.
Therefore the photographer should own the copyright, not the monkey. Because that’s the legal outcome which accords with the very reason we’ve got copyright in the first place, it solves our public goods problem.
Worth noting that this is also the reason why photograph copyrights belong to the photographer, not the subject, in the first place.
So, yes, the monkey selfie case has been decided the right way. It’s just an added bonus that the decision accords with our more general insistence upon shouting “Yah! Boo! Sucks!” at Peta whenever possible.