Man won the first round. But the monkey is fighting back.
Last year, the world was captivated by the unusual case of Naruto, an adorable macaque who took what became known as the “monkey selfie” after a photographer left a camera unattended on a tripod in the Tangkoko Batuangus Nature Reserve in Indonesia in 2011.
“A Sulawesi crested black macaque pulls one of several funny faces during its own photo shoot, seemingly aware of its own reflection in the lens,” David Slater, the photographer, later wrote in a book called “Wildlife Personalities,” which included the photos. “… My experience of these monkeys suggested that they were not just highly intelligent but were also aware of themselves.”
“The shutter was pressed by the monkey,” he wrote.
People for the Ethical Treatment of Animals used the photo shoot as opportunity to promote its message that animals deserve legal rights. In court, the group argued that Naruto was the legal creator of the photos and that Slater infringed on Naruto’s copyright. Earlier this year, the animal rights group — and Naruto, who could not be contacted for comment — lost. This month, PETA appealed.
And in a friend-of-the-court brief filed last week in the U.S. Court of Appeals for the Ninth Circuit, Agustin Fuentes, a prominent anthropologist at the University of Notre Dame and a specialist in “human and nonhuman primate interaction,” as the brief put it, took the monkey’s side.
“Animals can be the authors of valuable works of art, and there is a market for art created by animals,” Fuentes wrote. “The photographs at issue in this case are works of art authored by Naruto, the macaque … and the best available research strongly supports the conclusion that Naruto easily satisfies the basic requirements for authorship.”
In an interview, Fuentes said he was not an animal rights activist, but was compelled to speak up out of a sense of fairness. Some of the photographer’s cash should have gone to primate protection, he said.
“The real reason I got involved is that this should have been settled out of court,” he said. “The photographer should have been like, ‘Hey, this is awesome, I’m going to make some cash, I should share it.'”
Fuentes also said the seemingly huge question some think the case turns on — can monkeys make art? — was a “small issue” in the context of the case. All that mattered was that Naruto had pressed the shutter. As the brief put it: “There is no dispute that Naruto created the images in question. Naruto is, therefore, the author.”
“The way the law is written — which I think is strange — is that whoever is responsible for the act, the intentional act that creates image, that’s the person who owns it,” Fuentes said.
PETA, in announcing the brief, offered a less restrained argument.
“When science and technology advance, the law adapts,” Jeffrey Kerr, general counsel to the organization, said in a statement. “PETA is simply asking for an interpretation of the Copyright Act that acknowledges today’s scientific consensus that macaque monkeys can create an original work.”
But why had Naruto messed with the camera at all?
“It is likely that he had seen the human manipulation of the camera and heard the sounds it made and, as is common for macaques, became curious to investigate it on his own,” Fuentes wrote. “This in no way assumes Naruto had any cognizance of the concept of a photograph but rather that the actions and noises made by the camera were enticing and that through explorative manipulation Naruto was able to cause the camera to make such sounds/actions.”
So, monkeys can take photos. But can they understand what photos are? Alas, even to a man who has studied the animals for more than two decades, the monkey’s mind remains a mystery.
“Does he have the concept to recognize picture the way we do?” Fuentes said. “There’s no way to know.”