Public Interest

What’s The Upside When PETA Sues A Wildlife Photographer?

Sometimes it's hard to figure out what public interest a public interest lawyer serves?

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Public interest law is distinct from private practice in one major way: it’s driven by adherence to a cause rather than duty to a client. That’s not to say that public interest attorneys don’t owe obligations to their clients the same way private practitioners do, but rather that a public interest attorney’s representation of a client is usually directly related to the pursuit of some values-driven goal. Of course, different people can have very different values, and that means that what’s in the public interest is up for debate.

I don’t believe I’ve ever seen this principle demonstrated as clearly as it has been in the recent copyright case brought by PETA against a wildlife photographer, claiming that the photographer is infringing on a monkey’s copyright in a “selfie” the monkey took with the photographer’s equipment.

These hallowed pages have touched on the monkey-selfie story before, but some exposition is nevertheless in order.

The story began on the Indonesian island of Sulawesi in 2011. Photographer David Slater was there to get some shots of critically endangered macaques. Somehow or another, the macaques gained access to Slater’s camera, posed, pressed the shutter “hundreds” of times, and the result was a series of macaque selfies.

It wasn’t long before a few particularly striking macaque selfies were everywhere. And it wasn’t much longer before some enterprising souls realized that, if a macaque rather than a human had pressed the shutter on Slater’s camera, perhaps no human could claim authorship for copyright purposes. Their logic led them to the inevitable conclusion that the macaque selfies were in the public domain. So various online repositories, including Wikimedia Commons, began hosting the images and labeling them as free to use.

Slater fought a mostly losing battle against the Wikimedia Foundation to get the photo taken down so he could avail himself of his claimed copyright. But the Wikimedia Foundation has continually stood its ground and refused to take down the photo. And not without basis: copyright professors and the United State Copyright Office both have announced agreement with Wikimedia’s position.

So far, these facts seem to present a straightforward — if unique — issue: when a photographer creates the conditions necessary for a photo to be taken, but an animal actually presses the shutter, who if anyone owns the copyright? And the answer seems to be just as straightforward: no one. But in resolving this issue, two competing public interests are at play: first, the public interest in ensuring that incentives exist for creative work like photography; and second, the public interest in freedom of information. Presented with reasonably compelling but competing interests like this, we typically find a happy medium. The photographer gets paid so that the public can see the photographer’s work. In this case, though, the law seemed to come down a ways away from that happy medium.  

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Enter PETA, which is now looking to push the law even further away from that happy medium. Last week, PETA filed a lawsuit against Slater and others, claiming next friend status for the macaque that took the famous selfie, and asserting that the selfie is neither owned by Slater nor in the public domain — PETA says that the macaque itself owns the image.

Now we have a more complicated set of interests. First, the public is served when photographers get paid. Second, the public is served when images are widely available. And third …

Well, I’m not actually sure I can identify a public interest in granting animals ownership rights over intellectual property. PETA tries to tie its claims to some public interest by arguing that income derived from use of the selfie should go to fund macaque conservation efforts. Which is all well and good, but you’d think they could find a much more robust legal theory to test against a much more culpable and much less sympathetic defendant than David Slater, the wildlife photographer who did nothing wrong and has already had a tough time nevertheless. (As for more culpable and less sympathetic defendants, PETA could consider, for example, the palm oil industry, which just might be contributing to the demise of the macaque’s habitat and is not terribly sympathetic.)

In any event, it’s not at all clear that PETA is actually serving any sort of public interest here. And some commentators are already pointing out why and how PETA loses on the law. So why bring this case? Is PETA going to win? Unlikely. Is PETA’s quixotic lawsuit going to bring in donations for them? That seems unlikely to me too, though I’m no development expert. Will the case make some incremental step toward animal personhood? I doubt it.

Instead, all it will do is cause more headaches for photographer David Slater (a conservation ally), make other photographers think twice before attempting something creative lest PETA sue them, and spawn critical posts like this one. So, public interest lawyers: please think hard about whether your lawsuit actually serves some public interest. And if it doesn’t, don’t bring it.

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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