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Personhood and Monkey Business

Meet the Celebes crested macaque known as the star of the “monkey selfies.” She achieved notoriety in 2014 when photographer David Slater went to the Sulawesi peninsula of Indonesia (one of only two places this species of monkey exists, the other being a nearby island).

Slater carefully set up his camera equipment, using a tripod, and waited for a macaque to approach it, push a button on the remote control, and take its own photo. He ended up with several photos, this becoming the most famous when Slater uploaded it to the Internet as the “monkey selfie.” He licensed the photo to a news agency, on the assumption that he owned the copyright to the image.

The photo started to appear elsewhere, such as at the website of Britain’s Daily Mail, without Slater’s permission. The photo eventually was uploaded to Wikimedia Commons, a repository for photos that aren’t under copyright, and then it started appearing widely.

Lawyers in Britain and America (Slater is British) had varying opinions about the photo. A London-based lawyer said, “If [Slater] checked the angle of the shot, set up the equipment to produce a picture with specific light and shade effects, set the exposure or used filters or other special settings, and [saw] that everything required is in the shot, and all the monkey contributed was to press the button, then he would seem to have a passable claim that copyright subsists in the photo.”

Other lawyers said that the maker of the photo was an animal, not a human being, even if the human being set up the equipment, and that would mean that no one can claim copyright to the photo.

Last December, the U. S. Copyright Office issued a clarification of its own policies, stating that works created by a non-human aren’t subject to copyright: “To qualify as a work of ‘authorship’ a work must be created by a human being. . . . Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants.”

As examples, the clarification listed “a photograph taken by a monkey” and “a mural painted by an elephant.” Slater’s particular photo wasn’t mentioned as part of the clarification, but it’s probable that the Copyright Office had it in mind when revising its policies.

Does this mean that Slater enjoys no copyright in the photo and that the matter is over? The answers are “apparently yes” and “definitely no.” It looks like Slater is out of luck and that his image of the macaque will continue to be used in memes on the Internet. But that’s not the end of the matter.

The story has gone one step further. On September 15, 2015, People for the Ethical Treatment of Animals (PETA) filed a lawsuit arguing that the copyright should be assigned to the monkey. The lawsuit is against Slater and Blurb Inc., a publisher that produced a book of Slater’s animal photography.

“If this lawsuit succeeds, it will be the first time that a non-human animal is declared the owner of property, rather than being declared a piece of property himself or herself,” said PETA’s press release. “It will also be the first time that a right is extended to a non-human animal beyond just the mere basic necessities of food, shelter, water, and veterinary care.”

News reports of the lawsuit mentioned an immediate problem: if the copyright is owned by a monkey, which monkey owns it? The lawsuit says the macaque is named Naruto and is a male. Slater, in his book, identifies the monkey as a female. He was seconded by, of all people, PETA’s president, Ingrid Newkirk, who in a 2014 essay said the monkey is a female.

It’s likely that Slater and Newkirk are right about the monkey’s sex, since male macaques have oversized canine teeth, and the animal in the photo clearly doesn’t. Then again, who knows? Is someone going to go to Sulawesi, track down macaques, and look them in the face until the face in the “monkey selfie” is found? Not likely. 

A reporter asked PETA’s general counsel, Jeffrey Kerr, whether “Naruto” was aware of the lawsuit. Kerr replied that “Naruto is unable to come to into court himself and so we are standing as Next Friend. Your question is silly, frankly.”

When asked whether Naruto knew that his selfies existed, Kerr said, “Naruto certainly knew at the time that he was engaged in intentional conduct that is obvious from Mr. Slater’s own description of the situation, and Naruto clearly engaged in the purposeful, intentional conduct that resulted in the creation of the selfies.”

So there’s the immediate question of identity: has the “victim” been identified, and is the right monkey having his (or her) case pressed in court? There also is the question of standing: does PETA have legal standing to bring a lawsuit on behalf of the monkey? But there is yet a bigger question here: is the monkey in the photo a person?

If the case is thrown out, for lack of standing or other reasons, the court won’t make a determination of that issue, and perhaps that will be just as well. You might scoff and say, “Of course monkeys aren’t persons, just as gophers and lice aren’t persons.” You’d be right, of course, but rightness hasn’t stopped courts from making foolish decisions.

Not so many years ago, nearly everyone thought that no court would ever be so foolish as to assert that a marriage could exist between two people of the same sex. What’s to say that a court, even the Supreme Court, won’t ever decide that monkeys (and perhaps other animals) are persons, both in the legal and philosophical senses of the term?

Some opponents of the theory of biological evolution phrase their opposition in terms of rejecting the idea that “man is descended from monkeys.” That’s not really what evolutionists assert. They say that men and monkeys have a common ancestor and that the two species took different paths: one went this way and became today’s monkeys, while the other went that way and became homo sapiens.

Such arguments (and misunderstandings) can be made precisely because monkeys (and apes) bear a strong resemblance to man. (No one makes the same claims about man and, say, antelopes.) So it’s reasonable to expect a move such as PETA’s: if man and monkey share an ancestor, why can’t they share legal rights?

PETA’s position is philosophically hopeless—I hope I don’t need to digress into Thomistic definitions of personhood—but bad philosophy hasn’t prevent bad legal decisions, as we can see from looking at Supreme Court cases from the last few years.

There is a real possibility—small, perhaps, but nevertheless real—that a lower federal court will take inspiration from Justice Anthony Kennedy’s remarks about determining our own reality and will conclude that, by golly, monkeys are legal persons and that, tragically, for all these years they have been denied recognition of their personhood, in contravention of the Fourteenth Amendment.

That this sort of lawsuit can be taken seriously and that it has a possibility of progressing through the legal system, all the way to the top, should give us pause. We should pause to consider that when Christian anthropology is thrown out, there is no telling what nonsense might come in—and might be enshrined in law.

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