Login | October 22, 2018

Copyright law of the jungle: Suing only fit for homo sapiens

KEVIN PARKS
LAURA SCHAEFER
Law Bulletin columnists

Published: May 15, 2018

Addressing one of the more bizarre fact patterns in memory, the 9th U.S. Circuit Court of Appeals recently dealt a blow to “nonhuman” plaintiffs, holding that Naruto, a crested macaque monkey, had no standing to sue under the federal Copyright Act.

In the larger picture, however, Naruto emerged victorious.

With the ubiquity of cellphone cameras, the selfie now dominates the world of photography. And with every click of our selfie sticks, each of us becomes the author of a digital image, and the owner of the bundle of copyright privileges that go with it, including the right to sue for infringement.

But according to the 9th Circuit’s decision in Naruto v. Slater, No. 16-15469, 2018 WL 1902414 (9th Cir. April 23, 2018), that is not the case for Naruto and other nonhuman authors.

In 2011, wildlife photographer David Slater left his camera unattended while at a reserve on the island of Sulawesi, Indonesia — home to Naruto and his clan of crested macaques. The curious monkey used Slater’s camera to create a series of surprisingly high-quality pictures of himself that became known as the “Monkey Selfies,” which Slater later published as a book.

In 2015, People for the Ethical Treatment of Animals sued Slater and his book publisher for copyright infringement. Filed in the Northern District of California, the suit alleged that Naruto possessed the same copyright rights as a human author, and that

PETA had standing to pursue the claims as Naruto’s “next friend,” or guardian.

The complaint sought an injunction, a declaration that Naruto was the author and copyright owner of the “Monkey Selfies,” and an order permitting PETA to “administer and protect” Naruto’s copyright interests.

The defendants moved to dismiss for lack of constitutional standing under Article III and statutory standing under the Copyright Act. The U.S. District Court granted the motion. PETA appealed and, in late April, the 9th Circuit affirmed.

The court first analyzed and rejected, the notion that PETA had “next friend” standing, as it had not shown a “significant relationship” with Naruto, or a true dedication to the monkey’s best interest.

To the contrary, in colorful footnotes, Judges Carlos Bea and N.R. Smith (concurring in part) criticized PETA for using Naruto as “an unwitting pawn” to pursue its own “ideological goals.”

As it happened, following oral arguments, the parties reached a settlement whereby Slater would pay PETA a portion of the royalties generated by the “Monkey Selfies.” On this basis, the parties moved to dismiss the appeal and vacate the district court’s adverse judgment.

The 9th Circuit smelled a rat: In denying the motion, the court questioned what claims PETA purported to settle, “since the court was under the impression that this lawsuit was about Naruto’s claims … and Naruto was ‘not a party to the settlement.’”

In the court’s view, PETA had abandoned Naruto, and thus had no “next friend” standing to pursue the case. But the question remained whether Naruto could assert his claims “directly.” Ultimately, the answer was no.

On the question of Naruto’s Article III standing, the court relied on its precedent in Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004). In Cetacean, through their self-appointed lawyer, “all of the world’s whales, dolphins and porpoises” alleged facts sufficient to establish Article III standing to pursue an action for physical injuries caused by U.S. Navy sonar.

By alleging that he was the author and owner of the “Monkey Selfies” and had suffered harm from the defendants’ infringement, Naruto’s complaint also satisfied this standard, raising a justiciable case or controversy under Article III.

Nevertheless, both the Cetacean plaintiffs and Naruto were kept out of court based on a simple rule of statutory standing: A nonhuman cannot assert a claim unless the statute explicitly provides for animal standing.

Under the 9th Circuit’s reasoning, the Copyright Act (like the environmental statutes in Cetacean) contemplates only human rights holders — the “children” and “grandchildren” of an “author,” for example, as well as “widows” and “widowers.”

With no statutory standing, Naruto had “lost” his copyright claims, but who had “won”?

A closer examination shows the 9th Circuit deftly removing the human players from the equation, leaving the smiling-faced Naruto as the true victor.

The court questioned PETA’s motives, denied its standing and as a further indignity ordered

PETA to pay its opponents’ attorney fees on appeal. The court also took issue with David Slater’s book, in which he credited himself and his publisher as the copyright owners of the “Monkey Selfies.”

The court felt otherwise, pointing to the specific image credits where Slater acknowledged that Naruto “press[ed] the shutter” or took “his own” photograph. This dictum leaves Slater’s copyright claims in serious doubt.

In the end, only Naruto is vindicated, with the 9th Circuit acknowledging that he alone is the author of the “Monkey Selfies.”

Naruto cannot enforce rights in his images (nor can others), but what use would he have for human lucre anyway? In the quiet jungle, Naruto sleeps well tonight, with his dignity and copyrights intact.

Kevin Parks is a partner and Laura Schaefer an associate at Leydig, Voit & Mayer Ltd., an intellectual property boutique. Parks and Schaefer focus on counseling and litigation in all aspects of trademark and copyright law.


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