The “Monkey Selfie” Case: Can Non-Humans Hold Copyrights?
featuring a panel of experts on copyright, cyber law, and intermediary liability issues
After a photographer left his camera equipment out for a group of wild macaques to explore, the monkeys took a series of photos, including selfies. Once the photos were posted publicly, legal disputes arose around who should own the copyrights —the human photographer who engineered the situation, or the macaques who snapped the photos. This unique case raises the increasingly pertinent question as to whether non-humans—whether they be monkeys or artificial intelligence machines—can claim copyrights to their creations. Join Jon Lovvorn, Lecturer on Law and the Policy Director of Harvard Law School's Animal Law & Policy Program, as he hosts a discussion panel featuring the General Counsel of PETA, which sued on behalf of the monkey, and experts on copyright, cyber law, and intermediary liability issues.
This event is supported by the Ethics and Governance of Artificial Intelligence Initiative at the Berkman Klein Center for Internet & Society. In conjunction with the MIT Media Lab, the Initiative is developing activities, research, and tools to ensure that fast-advancing AI serves the public good. Learn more.
Notes from the Talk
Can non-humans hold copyrights? Jon Lovvorn (Policy Director of the Harvard Animal Law and Policy Program) explored this question in a conversation with Jeff Kerr (General Counsel to PETA), Tiffany Li (attorney and Resident Fellow at Yale Law School’s Initiative on Intermediaries and Information), Chris Bavitz (Managing Director of Harvard Law School’s Cyberlaw Clinic), and Kendra Albert (Clinical Instructional Fellow at the Cyberlaw Clinic).
Lovvorn opened the conversation by questioning the dualistic nature of law. As he explained, the law divides everything into a binary of persons vs. things. However, scientific knowledge about animals’ sentience, intelligence, and creativity shows that animals do not fit will into this binary. Likewise, artificial intelligence is another category that seems to blur the boundaries between persons and things.
Next, Kerr introduced the famed “monkey selfie case.” David Slater, nature photographer, traveled to Indonesia in 2008, where he left his camera equipment with a group of crested macaques. One of the macaques, Naruto, took several images, including the notorious “monkey selfies.” Slater later published a book, which included some of the images. In 2011, the images were uploaded onto Wikimedia Commons. Slater complained, arguing that his copyright was violated, and legal disputes ensured. In 2015, PETA filed a lawsuit on behalf of Naruto, requesting that he be given copyright over the photographs. The court ruled that copyright does not extend to animals. PETA filed an appeal. In 2017, PETA, Slater, and his publishing company reached an agreement that Slater would donate 25% of future proceeds to charities that will protect the Indonesian crested macaques.
Each of the panelists responded to Kerr’s overview. Bavitz suggested that aside from one person or one monkey owning the images, there exists a viable third option: no one owns it. Within the US context, he explained, copyright supposedly creates incentive. How does this map onto a world of non-human actors? Albert added that in addition to its incentivizing potential, copyright is also a form of speech regulation. What types of harm might result from this speech being owned when it was not previously? Yi emphasized that US precedent has repeatedly voted against giving copyright to nonhuman authors. However, in the future, with continued advancements in AI and deeper understanding of neuroscience, we will likely have to reconsider our laws. Finally, Lovvorn reiterated the inefficacy of law’s duality, pointing out that “animals” and “other creations of nature” are excluded from owning copyright, but that in contexts outside of the law, humans are typically considered both of these things.
notes by Donica O'Malley
About Jon Lovvorn
Jonathan Lovvorn is the first Policy Director of the Harvard Animal Law & Policy Program. Mr. Lovvorn is also a Lecturer on Law at Harvard Law School and will teach our inaugural course on Farmed Animal Law & Policy this Fall. He previously taught the HLS seminar in Wildlife Law in both the Fall 2015 and Fall 2016 terms. In addition to teaching at Harvard, Mr. Lovvorn has taught Animal Law and Wildlife Law at a number of other law schools, including New York University, Georgetown, George Washington University, and most recently Yale. He also has authored several articles concerning animal law and environmental policy, most recently publishing Climate Change Beyond Environmentalism in the Georgetown Environmental Law Review, which focuses on the intersectional threats of climate change to animals, people, and the environment. For several years Mr. Lovvorn has been serving as Senior Vice President & Chief Counsel for the Humane Society of the United States, where he founded and managed the nation’s largest animal protection litigation program. He has argued dozens of successful cases on behalf of both animals and the environment, authored or co-authored hundreds of state and federal animal protection reform laws, and served as the primary legal strategist for most of the major animal protection ballot measures enacted over the last 15 years.
About Jeff Kerr
As general counsel to PETA and its international affiliates for nearly 25 years, Jeff Kerr built and leads the world's largest legal team working for animal rights. His team was named Corporate Counsel magazine's 2017 Best Legal Department, and his high-profile cases—including the 13th Amendment case Tilikum v. SeaWorld, the first two successful constitutional challenges to "ag-gag" laws, and the "Monkey Selfie" copyright case—have made headlines around the world and sparked a global conversation about the legal rights of animals. Jeff’s undergraduate degree is from George Mason University, where he was a Weber scholar, and he received his law degree from the University of Virginia School of Law, which will honor him this weekend with its Shaping Justice Award for Extraordinary Achievement for his career fighting for and advancing the cause of animal rights.
About Tiffany Li
Tiffany C. Li is an attorney and Resident Fellow at Yale Law School’s Information Society Project, where she leads the Wikimedia/Yale Law School Initiative on Intermediaries and Information. She is an expert on privacy, intellectual property, and law and policy at the forefront of new technological innovations. Li is also an Affiliate Scholar at Princeton’s Center for Information Technology Policy. She has been honored as a Transatlantic Digital Debates Fellow (Global Public Policy Institute/New America Foundation), a Fellow of Information Privacy (International Association of Privacy Professionals), and a Fellow and Founding Member of the Internet Law and Policy Foundry. Li is a licensed attorney and has CIPP/US, CIPP/E, CIPT, and CIPM certifications from the International Association of Privacy Professionals (IAPP). She holds a J.D. from Georgetown University Law Center, where she was a Global Law Scholar, and a B.A. in English from University of California Los Angeles, where she was a Norma J. Ehrlich Alumni Scholar.
About Chris Bavitz
Christopher T. Bavitz is Managing Director of Harvard Law School’s Cyberlaw Clinic, based at the Berkman Klein Center for Internet & Society. He is also a Clinical Professor of Law at HLS, where he co-teaches the Counseling and Legal Strategy in the Digital Age seminar and teaches the seminar, Music & Digital Media. Chris concentrates his practice on intellectual property and media law, particularly in the areas of music, entertainment, and technology. He oversees many of the Clinic’s projects relating to copyright, speech, and advising of startups, and he serves as the HLS Dean’s Designate to Harvard’s Innovation Lab. Prior to joining the Clinic, Chris served as Senior Director of Legal Affairs for EMI Music North America. From 1998-2002, Chris was a litigation associate at Sonnenschein Nath & Rosenthal and RubinBaum LLP / Rubin Baum Levin Constant & Friedman, where he focused on copyright and trademark matters. Chris received his B.A., cum laude, from Tufts University in 1995 and his J.D. from University of Michigan Law School in 1998.
About Kendra Albert
Kendra Albert is a Clinical Instructional Fellow at the Cyberlaw Clinic and was formerly an associate at Zeitgeist Law PC, a boutique technology law firm in San Francisco. They received their JD from Harvard Law School in 2016. Kendra is also a Fellow at the Berkman Klein Center for Internet and Society and a writer and speaker on a diverse set of internet issues. Their work has been published in the Green Bag, the Harvard Law Review Forum, and WIRED. Kendra’s undergraduate degree is from Carnegie Mellon University, where they studied lighting design and history. Before starting law school, Kendra worked as a research associate at the Berkman Klein Center for Internet and Society, where they helped found Perma.cc. They also served as the first head teaching fellow for CopyrightX, Professor William Fisher’s open online copyright course. During law school, they spent time at the Electronic Frontier Foundation, Cloudflare, and Public Citizen. With EFF, they co-filed and received a DMCA 1201 exemption request for video game archiving and play.
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