Monkey See, Monkey Sue… Defendants Ask Judge To Toss Out Ridiculous Monkey Copyright Lawsuit

from the good-going dept

So at the end of September, we wrote about the absolutely insane lawsuit in which PETA — People for the Ethical Treatment of Animals — bizarrely claimed to be representing “Naruto” (whose name we only just learned with that lawsuit), as the “copyright holder” of the image below. Naruto, of course, is the macaque monkey who is famous for taking this photo:

Now, we’ve been writing about this monkey selfie for years now, mostly focusing on why the photo is clearly in the public domain. This issue comes up periodically, with the photographer whose camera “Naruto” used, David Slater, often taking random potshots at Techdirt for explaining basic copyright law to the public. Slater, as you may recall, still likes to insist that he holds the copyright on the photo, and twice has had companies apparently representing himself make dubious legal threats in our general direction.

Still, in a fight between PETA and Slater, we’re totally on Slater’s side. PETA has even less of a right to the copyright in the photo than Slater — and Slater has none. Either way, PETA’s lawsuit against Slater (along with Blurb, the publishing platform that Slater used to publish a book with the photo) has moved forward with both Slater and Blurb filing motions to dismiss. And given just how ridiculous this lawsuit is, these briefs fit right in. You can tell the lawyers had fun writing these. Slater’s motion to dismiss is short and sweet (only 4 pages) and has a truly beautiful opening:

A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey?s claimed copyright. What seems like the setup for a punchline is really happening. It should not be happening. Under Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), dismissal of this action is required for lack of standing and failure to state a claim upon which relief can be granted. Monkey see, monkey sue is not good law ? at least not in the Ninth Circuit.

Not surprisingly, Slater’s lawyer doesn’t even get into the whole public domain/copyright question at all. Instead, they just focus on the fact that a monkey has no standing to state a claim, and thus the case should be dismissed:

?[I]f Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.? Cetacean Community, 386 F.3d at 1179 (quoting Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F. Supp. 45, 49 (D. Mass. 1993)). In Cetacean Community, the Ninth Circuit rejected the notion that non-human animals could have standing under four Acts of Congress, including two that Congress enacted for the protection of animals: the Endangered Species Act and the Marine Mammal Protection Act. 386 F.3d at 1177-78. The standing inquiry for animals under Cetacean Community is very simple: unless Congress has plainly stated that animals have standing to sue, the federal courts will not read any legislation to confer statutory standing to animals. Id. at 1179.

Congress has not plainly stated that non-human animals have standing to sue for copyright infringement. Nothing in Title 17 of the United States Code even hints at that possibility. Indeed, imagining a monkey as the copyright ?author? in Title 17 of the United States Code is a farcical journey Dr. Seuss might have written. The ?children? of an ?author? can inherit certain rights ?whether legitimate or not? and that includes ?children legally adopted? by the author. See 17 U.S.C. §§ 101, 201, 203 and 304. An author?s ?widow or widower owns the author?s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author?s interest.? ? 203(a)(2)(A). Accepting Plaintiff?s standing argument would present the bizarre possibility of protracted family and probate court battles when the offspring of non-human authors scrum over the rights to valuable works.

Meanwhile, the filing from Blurb is four times as long at 16 pages, and goes into a bit more depth, but is basically making the same argument — and the lawyers can’t resist a few monkey jokes of their own. The very first line makes that clear: “This is a copyright case filed on behalf of a monkey.” And from there, Blurb makes a few different arguments, including the fact that a photo taken by a monkey cannot receive copyright protection:

As a threshold matter, Naruto lacks Article III standing to invoke the Court?s jurisdiction. Even if Naruto took the Monkey Selfies (a fact contradicted by allegations in the Complaint), he has suffered no injury, much less one that is redressable by this lawsuit. The U.S. Constitution and the Copyright Act contemplate copyright protection only for humans. Accordingly, the action should be dismissed under Rule 12(b)(1) for lack of a justiciable case or controversy.

Dismissal is also appropriate under Rule 12(b)(6) for lack of statutory standing and failure to state a claim. The Copyright Act affords no rights or protections to animals, the courts have repeatedly found that human authorship is required for copyright protection, and the U.S. Copyright Office has outright rejected any assertion that Copyright Act protects ?photograph[s] taken by a monkey.? Accordingly, Next Friends cannot establish that Naruto owns a valid copyright, much less that it was infringed by Blurb. The entire Complaint should be dismissed with prejudice.

The Blurb filing also highlights (as some press reports have) that PETA swears that Naruto is a male macaque monkey — while nearly all reports prior to this (including all explanations from Slater) have been that the monkey is female.

Of course, PETA will hit back on this, but we’ll see if the judge lets this monkey business go on for much longer.

Filed Under: copyright, david slater, monkey, monkey selfie, peta, public domain
Companies: blurb, peta