By Thomas Long, J.D.
A crested macaque named Naruto lacked standing under the Copyright Act to sue a photographer and a publisher over six photographs Naruto took of himself (the "Monkey Selfies") using the photographer’s camera, the U.S. Court of Appeals in San Francisco has held. The Ninth Circuit affirmed a district court’s dismissal of a complaint filed by the People for the Ethical Treatment of Animals (PETA), purporting to act as Naruto’s "next friend." Earlier this month, the court denied a request by the parties to vacate the district court’s judgment dismissing the claims after the parties reported that they had reached a settlement. In the Ninth Circuit’s view, the circumstances of the case—particularly PETA’s institutional interest in preventing the formation of adverse precedent—weighed in favor of denying the parties’ request to voluntary dismiss the case. In the latest decision, the court stated that the complaint included facts sufficient to establish Article III standing—the complaint alleged that Naruto was the author and owner of the photographs and had suffered concrete and particularized economic harms—but the monkey lacked statutory standing because the Copyright Act did not expressly authorize animals to file copyright infringement suits. One panel member wrote separately, concurring in the result but arguing that the case should have been dismissed for lack of jurisdiction because "next friend" standing was not available on behalf of an animal (Naruto v. Slater, April 23, 2018, Bea, C.).
"Monkey Selfies." Naruto—a crested macaque—lived in a reserve on the island of Sulawesi, Indonesia. The reserve was located near a village, and Naruto apparently became accustomed to seeing people taking photographs. According to PETA, Naruto "authored the Monkey Selfies sometime in or around 2011" by "independent, autonomous action" in examining and manipulating defendant David John Slater’s unattended camera and "purposely pushing" the shutter release multiple times, "understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens."
PETA suit. PETA filed a copyright infringement suit against Slater’s company, Wildlife Personalities, Ltd., and the publisher of a book featuring the Monkey Selfies, Blurb, Inc. PETA alleged that Slater repeatedly infringed Naruto’s copyright on the Monkey Selfies by "falsely claiming to be the photographs’ authors and by selling copies of the images" for profit. Along with injunctive relief and an award of the defendants’ profits, PETA sought permission to "administer and protect" Naruto’s authorship of and copyright in the Monkey Selfies.
Lower court decision. The federal district court in San Francisco dismissed the claims for lack of standing, holding that the Copyright Act conferred no rights upon animals. The Act contained no language that "plainly" extended the concept of authorship or statutory standing to animals; there was no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit had repeatedly referred to "persons" or "human beings" when analyzing authorship under the Act, the district court said. PETA did not identify a single case that expanded the definition of authors to include animals.
Further bolstering the district court’s view that Naruto could not qualify as an "author" for purposes of Copyright Act standing, the Copyright Office had specifically stated that works created by animals were not entitled to copyright protection. In the Compendium of U.S. Copyright Office Practices, issued in December 2014, the Office explained, "To qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable." The Copyright Office stated that it would not register works produced by "nature, animals, or plants," including, by specific example, a "photograph taken by a monkey."
Appeal. PETA filed an appeal with the Ninth Circuit. While the appeal was pending, PETA announced on September 11, 2017, that the parties had reached a settlement agreement. According to PETA, in exchange for voluntary dismissal of the appeal, Slater agreed to donate 25% of future revenue from the Monkey Selfies to charities that protect the habitat of Naruto and other crested macaques in Indonesia. The parties requested the Ninth Circuit to dismiss the case and to vacate the lower court’s judgment. The court denied this motion on April 13 and decided to fully adjudicate the case.
Next friend standing. "We gravely doubt that PETA can validly assert ‘next friend’ status to represent claims made for the monkey," the court said, "both (1) because PETA has failed to allege any facts to establish the required significant relationship between a next friend and a real party in interest and (2) because an animal cannot be represented, under our laws, by a ‘next friend.’" PETA did not claim to have a relationship with Naruto that was any more significant than its relationship with any other animal. And even if PETA had alleged a significant relationship with Naruto, it still could not sue as Naruto’s next friend because "next friend" standing was limited to what was statutorily authorized by Congress in the habeas corpus statute. Although Congress had authorized "next friend" lawsuits on behalf of habeas corpus petitioners and on behalf of a "minor or incompetent person," there was no such authorization for "next friend" lawsuits brought on behalf of animals. Nevertheless, the Ninth Circuit determined that it had to proceed to the merits because Naruto’s lack of a next friend did not destroy his standing to sue, as having a "case or controversy" under Article III of the Constitution.
Article III standing. Noting that the complaint alleged that Naruto was the author and owner of the Monkey Selfies, and that Naruto had suffered concrete and particularized economic harms as a result of the infringing conduct, the court concluded that the complaint included facts sufficient to establish Article III standing.
Statutory standing. The monkey lacked, however, statutory standing under the Copyright Act. In Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004)—a case brought on behalf of all of the world’s whales, dolphins, and porpoises, over physical injuries caused by the U.S. Navy’s sonar systems—the court had held that if an Act of Congress plainly stated that animals had statutory standing, then animals had statutory standing. If the statute did not so plainly state, then animals did not have statutory standing. The Copyright Act did not expressly authorize animals to file copyright infringement suits under the statute. Therefore, the court said, based on the court’s precedent in Cetacean, Naruto lacked statutory standing to sue under the Copyright Act. In addition, several provisions of the Copyright Act used the terms "children," "grandchildren," "legitimate," "widow," and "widower," all of which implied humanity and necessarily excluded animals that did not marry and did not have heirs entitled to property by law. Accordingly, the district court did not err in concluding that Naruto—and, more broadly, animals other than humans—lacked statutory standing to sue under the Copyright Act.
Concurring opinion. Circuit Judge N.R. Smith wrote separately, concurring that the case must be dismissed. In Judge Smith’s view, federal courts lacked jurisdiction to hear the case at all because of the lack of next friend standing. Judge Smith disagreed with the majority’s view that next friend standing was nonjurisdictional and would hold that there was no Article III jurisdiction in this case.
The case is No. 16-15469.
Attorneys: Matthew Daniel Strugar (Law Office of Matthew Strugar) for Naruto. Andrew J. Dhuey (Andrew J. Dhuey, Attorney at Law) for David John Slater.
Companies: People for the Ethical Treatment of Animals, Inc.; Blurb, Inc. Wildlife Personalities, Ltd.
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