No Standing for Monkey to Bring Selfie Copyright Suit
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A crested macaque named Naruto walked up to photographer David John Slaters camera and pressed the shutter and took a "monkey selfie".[/caption] People for the Ethical Treatment of Animals may be sorry it ever brought Naruto v. Slater, the "monkey selfie" copyright case. The U.S. Court of Appeals for the Ninth Circuit ruled Monday that monkeys don't have standing under the Copyright Act to bring such a case, even with PETA acting as "next friend." In fact, a concurring judge argued that animals should never have standing to bring any case, and majority author Judge Carlos Bea suggested the Ninth Circuit should reconsider that issue en banc. "We gravely doubt that PETA can validly assert 'next friend' status to represent claims made for the monkey ... because an animal cannot be represented, under our laws, by a 'next friend,'" Bea wrote. Regardless animals' jurisdictional standing, the court agreed unanimously that under Ninth Circuit law, animals do not have statutory standing to bring suits under the Copyright Act. Furthermore, the law specifies that the children of an author, "whether legitimate or not," can inherit authorship rights, Bea noted, as can a spouse. "The terms 'children,' 'grandchildren,' 'legitimate,' 'widow,' and 'widower' all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law," Bea wrote. The decision is a win for Berkeley solo Andrew Dhuey, who argued the appeal for photographer David Slater, while Cooley partner Angela Dunning argued for book publisher Blurb. PETA was represented by Irell & Manella partner David Schwarz. The case has generated headlines around the world, and fueled questions about whether artificially intelligent computers can ever be considered "authors" of copyrighted works. But Naruto never gained much traction in court. U.S. District Judge William Orrick III of the Northern District of California ruled in 2016 that animals have no standing to assert copyright authorship under Ninth Circuit law. Slater set out in 2011 to take photos of macaques in their natural habitat on the Indonesian island of Sulawesi. The parties dispute exactly how the photos were taken, but PETA alleged that after Slater set up his camera, a macaque named Naruto deliberately pressed the shutter multiple times when he became aware of his own reflection in the lens. PETA and Dr. Antje Engelhardt, a primatologist who said she’d monitored the macaques for years, brought suit as Naruto’s next friends, saying the monkey should benefit from the copyright. Orrick ruled last year that, under Ninth Circuit case law, animals do not have legal standing to bring lawsuits unless expressly provided for by statute. The Copyright Act makes no mention of animals, he wrote, and the U.S. Copyright Office has formally stated that “to qualify as a work of ‘authorship,’ a work must be created by a human being.” Engelhardt dropped out of the case on appeal, and the Ninth Circuit judges sharply questioned at the July hearing whether PETA could establish next friend status on its own—and whether a monkey can legally hold a copyright. PETA, Slater and Blurb announced they'd settled the case in September. In a joint statement they said the case “raises important, cutting-edge issues about expanding legal rights for nonhuman animals” and that Slater would donate 25 percent of future gross revenues from the photographs to charitable organizations that protect the macaque habitat. There was no mention of attorney fees, which are recoverable in copyright cases. The Ninth Circuit refused to let the parties dismiss the case, and on Monday was critical of the settlement. "In the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests," Bea wrote. "Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own." U.S District Judge Eduardo Robreno, visiting from the Eastern District of Pennsylvania, concurred in Bea's opinion. Judge N. Randy Smith concurred separately.
