The Monkey Selfie Case: Will It Have Broader Repercussions for AI and Copyright?

Used with the permission of David J. Slater

I am sure that British wildlife photographer David Slater rues the day that he ever laid eyes on Naruto, the Indonesian macaque, whose “monkey selfie” photo made Slater famous, but also brought him no end of grief and financial hardship. Readers will recall that it all started back in 2011 when Slater, a reputed wildlife photographer, set up his equipment with a view to photographing the goings on of a group of macaques in Sulawesi. The resultant photos, physically taken by one or more of the macaques after Slater set up the camera equipment having noted their interest in it, were promoted by Slater’s agent as the “monkey selfie”. It was a good marketing ploy, and for a time Slater earned some handsome royalties, but it was also an unfortunate choice of words because some users, notably Wikipedia, used the description of the photo as a “selfie” to deny Slater’s copyright and proclaim the work to be in the public domain on the grounds that Slater had not “taken” the photograph, as is generally required by US law for a photography copyright to be valid.

As I commented in my blog on this bizarre case last year (after being contacted by Slater), any fair minded person would agree that the work was his creation. He staged the scene, selected and set up the equipment, watched (supervised?) while the equipment was being manipulated by the monkeys, then sorted and selected out of the hundreds of blurry images the famous photo that best mimicked human behaviour (and thus its appeal). Common sense dictates that he is the author. However common sense, fair-mindedness—and the law–don’t always coincide.

Thus, in a publicity stunt, the animal rights group PETA (People for the Ethical Treatment of Animals) misused the legal process and brought a suit in California against Slater for copyright violation on behalf of “Naruto”, a name conferred by someone on the now-famous macaque. Slater was forced to defend himself and his claim to the copyright. Although the case was dismissed, it was appealed by PETA and, as a result, the saga continued. As blogger David Newhoff has pointed out, PETA’s insistence on pursuing its own agenda at the expense of Slater and other creators has resulted in “people with self-righteous and futile agendas…harming creators for absolutely no reason”.

PETA’s appeal was heard in July in San Francisco. Slater was reported to have stated that he didn’t have the funds to fly to the US to defend himself again. (He was reportedly trying to find work as a dog-walker in order to make ends meet.) While he had legal representation, who was paying his legal bills is not clear. The whole affair rapidly achieved a state of high farce. According to reports of the trial, arguments revolved around whether PETA had standing to represent Naruto as her “next friend” (a legal concept). The judges asked PETA what claim they had to represent Naruto and whether, indeed, they felt entitled to represent any animal in the world whose photo had been taken. As reported in The Register, there was a debate over whether Naruto’s “children and grandchildren” could be handed the copyright, were it to be awarded, and whether Naruto was obliged to send letters to the other monkeys in the group to let them know about the court case, since some of them had also been included in photos snapped by Naruto.

The case has finally been settled out of court with Slater apparently agreeing to donate 25% of future revenues from the sale of the photo to activities to protect macaque habitat in Indonesia. (Slater’s own website says that he has agreed to donate 10% of revenues toward a monkey conservation project in Sulawesi). Whatever the exact amount, I guess this was the price that Slater had to pay to make PETA’s legal harassment go away.

If this all sounds ridiculous, it is, but lurking behind the drama are some potentially serious issues involving copyright. While it is clear that neither an animal nor a machine can create a copyrighted work (at least not in the US, since the US Copyright Office issued a bulletin confirming the “human authorship” requirement in 2014), does this mean that the human who in effect created the work, albeit indirectly in a technical sense by not personally triggering the camera’s shutter, is not the copyright holder because of this technicality? What if a human, or humans, create a robot that takes photographs, or creates a work of fiction, or produces a painting. Can the work be copyrighted by the creators behind the robot’s programming?

This is not a hypothetical question. For example, Sony has developed software capable of composing music. Is the robot the instrument of the creator, in the same way that a graphic design tool or software in the hands of its creator is the instrument that fixes the creation, or, if the robot has Artificial Intelligence capabilities, is the robot the creator? If so, this would seem to put all machine produced works into the public domain.

This hearkens back to the original view of photography as just a form of mechanical reproduction with no element of creativity. This of course has changed over the years, and photographs have enjoyed copyright protection for many, many years—but that wasn’t the case at the beginning of photography. An interesting study was done on this issue a few years ago, examining the case (Burrow-Giles v Sarony) that was decided by the US Supreme Court in 1884, affirming the copyright of the author (Napoleon Sarony) for his famous photograph of Oscar Wilde, thus upholding legislation passed by Congress in 1865 that added photographs to the list of works by “authors” to be protected by copyright.

A paper recently published in IDEA: The IP Law Review, examined this dilemma, setting forth the argument that;

“With the recent boom of artificial intelligence, more and more creative works have been the result of non-human authors. Computer algorithms and learning machines have become a new source of creativity. The U.S. Copyright Office, however, has been slow to acknowledge the significance of AI in the creative process by denying copyrights of non-human works and releasing them into the public domain. This paper addresses the issue of IP ownership of AI generated works. It argues that giving authorship to AI programmers and owners is essential to the future development of the AI industry. (emphasis added). The paper proposes that instead of redefining “authorship” to include non-humans, it is simply necessary to reinterpret the terms “employee” and “employer” in the made for hire doctrine of the U.S. Copyright Act.”

While I’m not a legal scholar, I am sure this is tricky ground. As they say, beware the law of unintended consequences.

There are other aspects to this debate as well. David Newhoff has speculated on whether works created by artists using AI technology could be considered “joint works”, (that is, shared between the artist and the creator of the AI program) if the end result is a product that goes beyond the creative expectations of the original artist. Would this open another area for litigation with the owners of the AI technology seeking a share of the royalties? Newhoff points out that the terms of service and end-user agreements for the use of AI capable technologies are likely to become key issues in future.

When David Slater set up his camera equipment in Sulawesi a few years ago, he had no idea that the resulting photo would be the “selfie heard around the world”. It hasn’t brought him much personal reward, unfortunately, although the story has given headline writers a field day.

Much as how the issue of whether photography was an “art” worthy of copyright protection or merely a means of mechanical reproduction was decided by both legislation and the Supreme Court in the US in the 19th Century, the 21st Century will undoubtedly see litigation, and probably legislation and regulations, clarifying that human creativity through “works of art” can be expressed through machines programmed, guided and controlled by humans. Then the fight may be which human—the artist or the programmer—or both–owns the copyright. The day is probably not far off when a robot will compose an award winning song. Then watch the fun begin. It will make the monkey business of PETA’s suit against Slater look like child’s play.

© Hugh Stephens, 2017. All Rights Reserved.

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