It's one of the great philosophical questions that has perplexed humankind for centuries: if a monkey takes a selfie in a forest, but there's no one around to immediately Instagram it, does it still create an absurd legal wrangle over the nature of copyright law?
The answer is finally in – and it's a resounding Yes.
Remember the "Monkey Selfie" that was a thing back in 2011? Well, the US Ninth Circuit Court is currently considering an appeal by People for the Ethical Treatment of Animals (PETA), after their previous attempt to sue British wildlife photographer David Slater failed in 2016.
PETA argues that since the monkey (a black crested macaque named Naruto, to be precise) clicked the button on the camera, it owns the copyright to the picture. Slater maintains that since he set up the shoot, non-human animals can't legally own copyright and PETA has no business representing the macaque, even if it could, the photo belongs to him. You read a more in-depth piece on the case over on Motherboard, if you so wish.
PETA has a long history of morally questionable publicity stunts, and of disregarding the ethical treatment of humans (particularly women), while demanding it for animals. The case has left Slater, a freelance photographer and conservationist, facing bankruptcy, and is almost certain to be rejected. Even so, it is sort of a fascinating story – involving Wikipedia, the British tabloid press, the nature of art and intellectual property. And, of course, monkeys.
I interviewed the photographer responsible – at least by his own standards – to find out the inside story of the celebrated primate picture.
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VICE: So, what led you to Sulawesi, Indonesia to photograph Macaques?
David Slater: I've been working on conservation stories since 1999 – sometimes teaming up with NGOs and conservation groups, and working all over the world. It's usually at my own expense, which I then make up through licensing my photos. It's a risky business, but driven by love for the subject and hoping you're going to make a difference.
My trip to Sulawesi was all self-motivated and self-funded. I was there for a month with one unofficial guide. I sorted the flights, accommodation, food and all the camera equipment. I'd been before – it's an amazing biodiversity hotspot and I was looking for a real conservation story.
How did that particular shot come about, then?
I'd been hanging out with this troupe of monkeys for about 48-hours, never leaving their side, and gaining their trust. This is equatorial rainforest and I'm carrying about 50lbs of gear, climbing over logs, through mud and cobwebs, watching for snakes and all that – but eventually they accepted me and started to groom me. I tried the camera on a self-timer to get a picture of that. I saw how the monkeys responded to the camera and that gave me the idea.
I set the camera on a tripod with a cable release and angled the background to make sure the sun was behind the camera, not facing it. Then I set the camera so it made a funny, chk-chk-chk noise when you pressed the button, which the monkeys loved. I'd been working with these monkeys for two days, observing their behaviour, and knew they would eventually end up pressing the button. It still took a while, though.
How did the photo end up getting so viral and then controversial?
The Daily Mirror, The Sun and The Daily Mail all licensed the image through my agent as a funny "monkey takes selfie" story. They didn't report it well at all, but I was happy to go along for a bit of fun and some good publicity for the conservation cause. But Wikipedia took the image off the Daily Mail website and loaded it onto Wikimedia Commons so everyone could use it for free. Their argument was that since animals can't legally hold copyright, then no one held the copyright at all. When my agent sent a take down notice they published it and tried to shame me for wanting a fee for my work. The funny thing is that when Wikipedia answered me they quoted the Daily Mail – which they themselves now refuse to recognise as a reputable source.
"So many photographers now use remote cameras and GoPros, where an animal triggers the camera without the photographer even being present."
Damn – I love Wikipedia, but that does sound kind of shitty. How did you end up getting sued by PETA?
I released a photo book in 2014 with that image in it. That's when PETA came along. They're arguing that animals can actually own copyright, and if the monkey pressed the button, the monkey owns the rights. Technically, it's actually the monkey that's suing me. PETA are claiming to act as Naruto's "next best friend" – like if you had a case where there was a baby or a disabled person who couldn't represent their own interests. If they did win, any money would go to PETA, and they would supposedly administer it in the interests of the macaques. Though, with their record, even that's somewhat hard to believe.
The one bit of credibility they did have at the start was that they were working with the primatologist Dr Antje Engelhardt, who has worked a lot with the macaques. But she removed herself from their case, and I think is now being legally harassed by PETA, too.
[Sidenote – this is true, and another weird twist in this story]
From an artistic point of view, this seems like an old argument. Like, Duchamp didn't actually make his urinal, but he's recognised as the artist because he set it in the gallery. Likewise, Warhol and his Brillo Pads or Damien Hirst hiring other artists to churn out his work. Haven't we sort of settled all this over the past 100 years or so?
Well, exactly. So many photographers now use remote cameras and GoPros, where an animal triggers the camera without the photographer even being present. Cameras are put on the backs of birds or on the collars of lions, and they shape the composition. The BBC and National Geographic use that type of footage all the time – Blue Planet and documentaries like it are full of these techniques. But are Wikipedia or PETA going to challenge massive companies like that? No – they pick on an independent nature photographer from Wales.
That sucks. How has this all impacted you personally?
It's hard to know how much money I've missed. Some people say hundreds of thousands. Someone got in touch with me that they'd calculated 40 million uses for the photo – including shares on Facebook and Twitter and all that. Whatever it is, it could have made a huge difference to my life, but also to conservation and the monkeys.
I'm in debt to my attorney. If I don't get awarded legal fees, I may be looking at bankruptcy. But it's not just about money; I'm massively depressed over this. It's so draining. I just want a bit of fair income and to promote the welfare of animals. That's actually the only positive note. If this photo had never been taken, the plight of these monkeys would have been so much more serious. They were near extinction and had experienced 90 percent decline over the last few decades. Now the locals have renamed them "Selfie Monkeys" and they're doing better. That's the one silver lining to all this.