When a monkey takes a selfie, who owns the copyright?

  • Alumni

In late 2015, Andrew Dhuey ’92 was reading the paper when he came across an article that seemed straight out of The Onion. A group of crested macaques in an Indonesian nature reserve had used a photographer’s camera, left unattended on a tripod, to take pictures of themselves.

The so-called “monkey selfies” went viral, and the photographer, David Slater, later published them in a book. Then, People for the Ethical Treatment of Animals (PETA) filed suit against Slater and his company in federal district court in San Francisco for copyright infringement -on behalf of one of the monkeys, a 7-year old named Naruto.

“This would be a perfect case for me,” thought Dhuey, an attorney in Berkeley who specializes in intellectual property law. Slater agreed to hire him. Dhuey’s two-page brief, filed in January 2016, embraced the humorous nature of the case. “Monkey see, monkey sue is not good law,” he wrote. His argument was simple: “The only pertinent fact in this case is that Plaintiff is a monkey suing for copyright infringement,” because Congress has not given non-human animals standing to sue over such violations.

“It’s the first time I’ve really done any kind of joking around in something I filed in court. I did it because I thought it would help my client, not for my own sake,” says Dhuey. “As far as I know, this is the first time anybody’s made this argument.”

Dhuey liberally employs humor in his own practice. His LinkedIn profile says he works “at a tremendously important law firm built on the principles of power, prestige and arrogance” and features a profile photo of him in a Chippendales costume. “It’s something of a filtering mechanism. I want to be up front about the fact that I’m sort of an oddball,” he says.

That works well for his clients, most of whom are individual biotechnology inventors. Dhuey has spent more than 25 years as a solo practitioner, after starting his career as a patent litigator at Pillsbury Winthrop Shaw Pittman LLP. For the past decade, he’s focused on petition-stage appellate cases at the U.S. Court of Appeals and the Supreme Court. “I got tired of dealing with boring document review and discovery disputes, and I enjoy legal research and writing,” he says.

Though Dhuey says his greatest achievement in law school was winning the pool tournament at a nearby billiards hall, he credits UC Hastings with setting him on the path to IP law. “Patent law was just starting to take off at that point, and the classes I took were important as I went to work at Pillsbury,” he says.

Despite years of successful practice, he hasn’t lost his passion for the field. “Most patents are worthless, but a relatively small number are worth an absolute fortune. It’s high stakes, and I enjoy seeing the inventive genius at work. It’s a pleasure to work with people who created these incredible things and defied all the odds,” he says.

As for the monkey selfie case, Dhuey’s client prevailed at the district court, and PETA appealed. They reached an undisclosed settlement in September, which included Slater’s agreement to donate a quarter of future revenues from the picture to charities protecting crested macaques in Indonesia. Although the parties have asked the 9th U.S. Circuit Court of Appeals to dismiss the appeal, the Competitive Enterprise Institute, a libertarian think tank that was not involved in the case, has urged the court to issue a ruling upholding the lower court’s decision. The ruling will have implications that go beyond animals. “A lot of people are thinking this is going to be an issue when it comes to artificial intelligence,” Dhuey says.

Now that the case has settled, Dhuey is planning to get a framed picture of the monkey selfie, signed by Slater, to display on his wall. He’s pretty sure he won’t have to pay Naruto.