By Thomas Long, J.D.
In the notorious copyright infringement dispute involving "selfies" allegedly taken by a monkey named Naruto, the U.S. Court of Appeals in San Francisco has denied a request by the parties to vacate a district court’s judgment dismissing the claims. The lower court held that Naruto lacked standing under the Copyright Act to sue a photographer and a publisher of a book containing six photographs Naruto took of himself using the photographer’s camera (the "Monkey Selfies"). The Ninth Circuit also denied the parties’ joint motion to dismiss the appeal of the district court’s judgment filed by the plaintiff, People for the Ethical Treatment of Animals, Inc. (PETA). The parties reportedly had reached a settlement agreement. However, in the Ninth Circuit’s view, the circumstances of the case—particularly PETA’s institutional interest in preventing the formation of adverse precedent—warranted the denial of the parties’ motions (Naruto v. Slater, April 13, 2018, per curiam).
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 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.
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."
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 Ninth Circuit noted that Federal Rule of Civil Procedure 42 provided that an appeal "may" be dismissed on the appellant’s motion. This permissive language indicated that the grant of a voluntary dismissal was not mandatory. In the court’s view, dismissal in this case, and vacatur of the lower court’s decision, was not advisable. The court cited other cases in which voluntary dismissal was denied because the cases involved important legal issues that had repeatedly arisen, and the defendants in those cases appeared to seek dismissal in order to prevent adverse precedent from being developed. The court also noted that the case had been fully briefed and argued by both sides, and the court had expended considerable resources on the matter. Denying the motion to dismiss would ensure that the expenditure of public resources would lead to "some return."
"As one of our colleagues once warned in a similar context, ‘courts must be particularly wary of abetting "strategic behavior" on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case,’" the court said, citing Suntharalinkam v.Keisler, 506 F.3d 822, 828 (9th Cir. 2007) (en banc) (Kozinski, J., dissenting from the denial of rehearing). The court also pointed out that, although PETA claimed to have reached a settlement with Slater, Naruto the monkey was not a party the agreement, and it appeared that the agreement would not bar an attempt to file a new infringement action. Accordingly, the court denied the joint motion to dismiss the appeal and vacate the judgment.
This 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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