If an infinite number of monkeys banged randomly on typewriters for an infinite amount of time, one of them would eventually produce a pretty good sonnet. But would the monkey own a copyright in the sonnet?
According to People for the Ethical Treatment of Animals, or PETA, the answer is yes. They are suing David Slater, a photographer, for copyright infringement, claiming that Naruto, the crested macaque monkey who took a famous selfie is the photo’s rightful owner, not Slater whose camera the monkey used.
While the case may seem far-fetched, it actually sits at the center of a major question in copyright law: Who can be an “author” of a copyrighted work?
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The U.S. Constitution and the current copyright law provide that only “authors” can receive copyrights. But what does it mean to be an author?
We know that authorship includes more than just people writing books. Painters, choreographers, and architects all count as authors of their creations. As do photographers.
In a famous 19th century case, the U.S. Supreme Court explained that Napoleon Sarony was the author of a photograph he took of Oscar Wilde. The photo, said the court, arose from Sarony’s original mental conception. His decisions about lighting, posing, and framing produced a “new, harmonious, and characteristic picture.”
So did Naruto have a “mental conception” of the image that he was producing?
PETA’s lawsuit cites Slater’s own descriptions of Naruto’s behavior: “Despite the howling posture, the macaque was silent throughout, suggesting to me some form of fun and artistic experiment with its own appearance.” Naruto may not have understood that the camera could produce a photograph, but Slater’s statements seem to suggest that the monkeys were engaged in self-aware play with their reflections in the camera’s lens.
Despite these assertions, Slater claims that he is the photo’s author. He allowed the monkeys to play with the camera knowing that they would take interesting pictures of themselves. He might claim that he is like the director of a movie—he may not have held the camera or pressed the shutter, but the image derived from his, rather than Naruto’s, mind.
And finally, Wikimedia offers a third take on the situation: No one is the author of the photo because monkeys can’t be authors. Thus, the photo is in the public domain and free for anyone to use.
Each side has interesting arguments. As a conceptual matter, it is not obvious that Naruto’s behaviors are much different from those of a human infant. If a small child grabbed her parent’s phone, looked into the screen, and happened to snap a picture, would she not be the photo’s author? If she would, how is that different from what Naruto did?









