14 January 2016
The Monkey Puzzle
How the ape about town would spend its money
by John Watson
To those who like acronyms, the discovery that there is an organisation called “PETA” or “People for the Ethical Treatment of Animals” throws a dash of colour across an increasingly grey world. To those who are not focussed on their issues, PETA are pleasingly eccentric. Vegan? of course. Opposed to using reindeer in Christmas festivities? Indeed. Shoes made from non-animal products? I certainly hope so. To British photographer David Slater, however, they are something rather different: the self-appointed next friend of Naruto, a macaque monkey who resides in Indonesia and is taking legal action against him in the US courts.
A “next friend” is not just a mate with whom someone whose first language is not English goes down to the pub. The term also has a technical legal meaning; to the lawyer it is someone who conducts litigation on behalf of a party unable to do it for itself. Sometimes the reason for that is infancy: sometimes it is lunacy, but in the case of the plaintiff in Naruto v Slater, where judgement was given by the Californian District Court last week, it was, well, monkeyness. That is why Naruto needed a best friend and in fact he was lucky enough to have two of them, the other being (perhaps inevitably) a distinguished German academic, Antje Engelhardt PhD, a post-graduate fellow of the Primate Centre at Gottenberg.
The issue was whether the monkey, Naruto, owned the copyright of a selfie photograph which it had taken of itself in 2011. The camera had been made available to Naruto by Mr Slater but it was Naruto himself, an intelligent primate by all accounts, who made the decision to take the photograph and pressed the button. The next friends claimed that Naruto was entitled to the proceeds of the copyright, including royalties from a book published by Mr Slater which included the photograph.
The case is complicated by contentions that the animal which had photographed itself was not in fact Naruto himself but a female called Ellie – but whatever the rights and wrongs of that, US District Judge Orrick dismissed the claim on the basis of his interpretation of the US Copyright Act 1976, saying:
“If Congress and the president intended to take the extraordinary step of giving animals standing, they would do so plainly” and then going on to say that he did not think that the act could be read as going beyond humans.
That is a direct way of dealing with the case, but it avoids a much more interesting question. Had he won, what would Naruto have done with the proceeds? The next friends had their answer to that one and their pleadings proposed that:
“all proceeds from the sale, licensing, and other commercial uses of the Monkey Selfies, including Defendants’ disgorged profits, be used solely for the benefit of Naruto, his family and his community, including the preservation of their habitat, in consultation with Dr Engelhardt and other third parties who are already working for such benefit and preservation”.
Now it is at this point that things become a little unusual. The law of various US states permits funds to be bequeathed for the upkeep of animals, and indeed there is English common law authority to the same effect; however, in those cases the money is simply left by the deceased for the purpose of maintaining the animal in a particular way and, on the animal’s death, any balance passes to those entitled under the deceased’s will or intestacy. There is no question of the animal actually owning the money in a legal sense. If the next friends had succeeded, on the other hand, Naruto would have been entitled to the money in his own right and also to decide how any balance not used on his upkeep would be applied.
Those charged with making his decision for him would have had a difficult task. On the death of an incapacitated human who makes no will, money passes to family members according to intestacy rules. Do these apply to monkeys, and if so, how would one identify the family members? In the case of a monkey with loose morals, for example, it might be difficult to trace illegitimate offspring.
Perhaps one could get round all this by arguing that the funds should be disbursed as Naruto himself must have wanted. That isn’t particularly easy either. There are obvious difficulties in establishing his desires as a question of fact. Would he have approved of his money being used on his community? Perhaps he would, but it is hard to be certain. His fellow apes may have been unkind to him and he may resent them. If so, perhaps he would prefer the money to go to a cats’ home. After all, there are plenty of humans who take that approach. No, the test would have to be applied by reference to abstract criteria. What would a reasonable monkey have wanted? The monkey on the Clapham omnibus, as the lawyers say. No doubt the decision would be coloured by whatever evidence there was as to Naruto’s personal circumstances. Are there members of his tribe who have been especially kind to him? Did one share a banana with him at a time of adversity?
The other question is who would make the decision? Should it be his next friend or someone independent? Suppose the conclusion is that a reasonable monkey would want the money to go to an animal charity. Which one would it be? Would PETA be able to scoop up any surplus for its monkey project or would the competing claims of other animal charities, such as the RSPCA, have to be taken into account? Surely it could not depend on which organisation had acted as next friend. Otherwise Naruto would end up like a sort of cash-filled football with charities fighting to represent him and grab the funds.
Ownership by the more intelligent animals may be an idea whose time will one day come, but as a preliminary step a mechanism for animals to make decisions will need to be devised. That could be done by legislation, or rule could be established by caselaw. For the moment one can only be sorry that the US Courts have declined to rise to the challenge.
