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Is the ‘monkey selfie’ case making a monkey out of the law?

28 July 2017

The US Court of Appeals for the Ninth Circuit recently held oral argument on what has become famously known as the ‘Monkey Selfie’. That case seeks copyright protection in an image apparently ‘created’ by an animal rather than by a person. And while any seasoned lawyer knows that the comments of judges at oral argument are not to be weighted too heavily in predicting an outcome, the members of the panel who questioned the parties were certainly sceptical of the plaintiff’s theory to bring the case on behalf of a wild animal.

The case was filed in 2015 by the People for the Ethical Treatment of Animals (PETA), ostensibly on behalf of a crested black macaque that PETA named ‘Naruto’. It alleged principally that the defendants David Slater and Blurb, Inc. infringed ‘Naruto’s’ copyright when they published a photograph from Slater’s camera showing the smiling primate. Naruto allegedly picked up Slater’s unattended camera and caused it to take a picture, by virtue of which PETA alleged that Naruto was the ‘author’ of the work within the meaning of the US Copyright Act.

The fundamental argument of the motion to dismiss that followed was that an animal cannot have standing to sue under the Copyright Act for the basic reason that the Copyright Act does not say they can. In opposition, PETA argued for a broader interpretation of the Copyright Act, suggesting that the text of the Copyright Act is focused on authorship and ownership, not the species of that author or owner. PETA framed the choice by Congress not to define ‘author’ as the absence of a limitation on that definition to just human beings.

The US District Court was having none of it. A plaintiff lacks standing, the Court held, unless a dispute involves two parties that the law recognises as having the right to adjudicate the disagreement in court, a federal court cannot hear the case. If a party lacks an ownership interest in a copyrighted work, then that person cannot sue to enforce it – he or she is a legal stranger to the dispute. Assuming for the sake of argument that the animal took the photograph and that the defendants reproduced it without the animal’s permission (however that might be obtained), the animal still has no right to come to court. In the District Court’s words:

Here, the Copyright Act does not ‘plainly’ extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit have repeatedly referred to “persons” or “human beings” when analysing authorship under the Act.

The District Court also pointed with deference to the oft-cited Compendium of the U.S. Copyright Office, which states that it will not register a ‘photograph taken by a monkey’. That reference was itself a direct response to the infamy surrounding the photograph in this case (as an aside, even if ‘a photograph taken by a money’ cannot be copyrighted by the monkey, it is not clear why that would categorically rule out any copyright for a human author in a work in which cameras are intentionally left in a place where some natural force or animal will cause them to snap a photo). Ultimately, the District Court held that the Copyright as written cannot be extended beyond its plain and ordinary meaning to encompass the concept of what PETA alleged was the ‘tremendous [public] interest in animal art’.

PETA appealed, and the Court of Appeals recently held argument on the parties’ briefs. Even beyond whether Naruto can hold a copyright, the court was also concerned about PETA’s status. What is called ‘next friend’ status is what brings PETA into the case on Naruto’s behalf. The panel questioned openly whether PETA had the required ‘significant relationship’ to Naruto to be a party in interest. The judges pressed PETA’s attorneys further on the impossibility of complying with other aspects of the Copyright Act that would have to be observed, such as written notices or the rights of the author’s children – by the ‘author’. How that would be accomplished is anyone’s guess.

Nor amid all the tempting puns and monkey jokes is this case a mere academic exercise. Slater’s counsel pointed out at oral argument that the financial impact of the case has been devastating. A nature photographer whose business is the licensing of the works he makes, he has been embroiled in multi-year litigation. The Copyright Act is one of the few instances in American law where there are fees-shifting aspects, meaning that the court can ultimately instruct an unsuccessful plaintiff to pay the attorneys’ fees incurred by the opposition in defending the case, if the court determines the plaintiff lacked good grounds to bring it. That is probably where this case goes from here.