Monkey Case

[Hermalindo Lepicier]

TheB virus is also known as the herpes simiae virus. It produces flu-like symptoms such as fever, fatigue, muscle ache and headache. Symptoms can show up within a month of exposure to the virus, or as early as three to seven days after exposure, according to the United States Centers for Disease Control and Prevention (CDC) website.

Over time, blisters can appear on the body. As the virus progresses, it spreads to the brain and spinal cord, causing inflammation. This can cause problems with muscle coordination, brain damage and even death.

The B virus is naturally carried in the saliva, urine and stool of macaques, which are commonly found in Hong Kong, according to the CDC. Humans can be infected when bitten or scratched by macaque monkeys, or when tissue or fluid from a monkey enters via broken skin as a result of a cut or scratch they already have.

Other primates such as chimpanzees can contract the virus and frequently die from it but there have been no documented cases of these other primates spreading the virus to humans. There is no vaccine.

The Hong Kong Center for Health Protection recommends washing any wounds inflicted by a monkey under running water and seeking medical assistance immediately. The CDC recommends washing gently and scrubbing the wound for 15 minutes with soap, detergent or iodine and then running water over it for another 15 to 20 minutes before immediately seeking medical attention.

Humans are not infected with this virus frequently. According to the CDC website, since the virus was first identified in 1932, only 50 people have been documented with infections, and 21 of them have died. Veterinarians and lab workers who come in close contact with macaques are more vulnerable to the virus.

Antiretroviral therapy (ART), or the treatment of human immunodeficiency virus (HIV) using anti-HIV drugs, can also be prescribed but the CDC states that the decision on whether or not to prescribe ART takes into account several factors including the condition of the macaque, how properly and quickly the wound was cleaned and the nature of the wound, according to the Pennsylvania Department of Health website.

However, the popularity of the photos, came at a price. In 2014, it triggered a dispute between Mr. Slater and Wikipedia when the online encyclopaedia uploaded the picture and tagged it as being in the public domain, reasoning that monkeys cannot own copyright.

Astoundingly, PETA appealed the dismissal, in the Court of Appeals of the 9th Circuit, and those following the case were treated to the spectacle of US Federal Court judges and lawyers making monkey jokes and discussing whether PETA had identified the right monkey.

Somewhat disappointingly, however, the drama was cut short as the parties reached a settlement out of court. While the exact terms of the settlement are unknown, lawyers for PETA have said that the deal includes a commitment from the photographer to pay 25 percent of all future royalty revenue to the monkey sanctuary where Naruto lives.

This would seem to be the end of the monkey selfie case, but in a recent interview Mr. Slater hinted that he is thinking of suing Wikipedia for copyright infringement. But where could this lawsuit take place?

The Naruto case took place in a California court because Mr. Slater has published a book called Wildlife Personalities using the self-publishing service Blurb, a Delaware company that ships its printed material from a San Francisco warehouse. The plaintiffs (PETA) claimed that this was enough to grant them standing in the United States. However, as Mr. Slater is a British citizen, any future litigation could take place in the United Kingdom.

Copyright law is strictly national in nature, but there is an international system in place that allows creators to protect their works in other jurisdictions. As a general principle, Article 5(1) of the Berne Convention for the Protection of Literary and Artistic Works states that copyright in a work subsists wherever it originates, that is, in the country in which it was first published. In the monkey selfie case, the picture was taken in Indonesia, and first published in the UK through Caters News Agency, a picture and video licensing firm, which then granted permission for its publication in the British media.

In so far as the work can be said to have originated in the UK, and since Mr. Slater has repeatedly claimed exercise of his rights in the UK (as per Article 5(2) of the Berne Convention), it would be more than fair to assume that UK copyright law would apply in this instance.

Even if we ignore the place of publication, courts seem very keen to exercise jurisdiction over their nationals. Courts in the UK have even heard cases from other jurisdictions, as was the case famously in Pearce v. Ove Arup.

Moreover, the Court of Justice of the European Union (CJEU) has been erring on the side of the creator when it comes to jurisdictional matters, and in particular when dealing with online infringement cases, such as in Pinckney v. Mediatech and Hejduk v. EnergieAgentur.

As a British citizen, it is fair to assume that Mr. Slater would sue Wikipedia in the UK. Commentators in the United States seem to agree that the photo does not enjoy copyright protection under US law.

While, the question remains open to debate, should Mr. Slater sue in a UK court, it would appear, given existing case law and the position of leading authorities on copyright in relation to photographs, that he has a very strong case in claiming that copyright subsists in the image and his ownership of the photo.

Ms. Painer, a professional photographer, had taken a portrait of teenager Natascha Kampusch, who subsequently became famous for having been kidnapped and held for eight years in a basement. She later escaped her captor.

This case is directly relevant to the monkey selfie case. While Painer deals with portrait pictures, the court clearly lists the various actions that warrant originality, including the choice of angle, lenses and even techniques for developing the photograph.

In similar vein, the landmark English case Temple Island Collections Ltd v. New English Teas [2012] EWPCC 1 case offers a strong indication that Mr. Slater may well be able to claim ownership of his photo in UK courts. That case involved an iconic black-and-white picture of the Houses of Parliament with a red bus crossing Westminster Bridge. The photograph, which has become famous and is routinely licensed to other companies, is owned by a firm that produces and sells London souvenirs. When negotiations with Temple Island Collections Ltd to obtain a license to use the image on their tins broke down, the defendants, New English Teas, went ahead and produced a different version of the Temple Island picture featuring a different angle and setting, but the same monochrome background with the red bus.

While the case rested largely on whether a substantial part of the Temple Island image had been copied, the defendants argued at some point that the copied picture did not have copyright as it was not an original work.

While arguably not a commonly held view, there is in my opinion an extremely strong argument to be made regarding originality of the monkey selfie in the UK based on these and other cases. It will be interesting to see how this plays out.

Between 2011 and 2018, a series of disputes took place about the copyright status of selfies taken by Celebes crested macaques using equipment belonging to the British wildlife photographer David J. Slater. The disputes involved Wikimedia Commons and the blog Techdirt, which have hosted the images following their publication in newspapers in July 2011 over Slater's objections that he holds the copyright, and People for the Ethical Treatment of Animals (PETA), who have argued that the copyright should be assigned to the macaque.

Slater has argued that he has a valid copyright claim because he engineered the situation that resulted in the pictures by travelling to Indonesia, befriending a group of wild macaques, and setting up his camera equipment in such a way that a selfie might come about. The Wikimedia Foundation's 2014 refusal to remove the pictures from its Wikimedia Commons image library was based on the understanding that copyright is held by the creator, that a non-human creator (not being a legal person) cannot hold copyright, and that the images are thus in the public domain.

Slater stated in August 2014 that, as a result of the pictures being available on Wikipedia, he had lost at least 10,000 (equivalent to 14,143 in 2023) in income and his business as a wildlife photographer was being harmed.[1] In December 2014, the United States Copyright Office stated that works created by a non-human, such as a photograph taken by a monkey, are not copyrightable.[2] Several legal experts in the US and UK have argued that Slater's role in the photographic process would have been sufficient to establish a valid copyright claim, though this decision would have to be made by a court.[3][4][5]

In a separate dispute, PETA tried to use the monkey selfies to establish a legal precedent that animals should be declared copyright holders. Slater had published a book containing the photographs through the self-publishing company Blurb, Inc. In September 2015, PETA filed a lawsuit against Slater and Blurb, requesting that the copyright be assigned to the macaque and that PETA be appointed to administer proceeds from the photos for the endangered species' benefit.[6] In dismissing PETA's case, a federal district court ruled that a monkey cannot own copyright under US law.[7] PETA appealed. In September 2017, PETA and Slater agreed to a settlement in which Slater would donate a portion of future revenues on the photographs to wildlife organizations. However, the court of appeals declined to dismiss the appeal and declined to vacate the lower court judgment.[8] In April 2018, the appeals court ruled against PETA in its judgement that animals cannot legally hold copyrights and expressed concern that PETA's motivations had been to promote their own interests rather than to protect the legal rights of the monkeys.[9]

3a8082e126