from the the-monkey's-uncle-is-missing dept
The ongoing saga that is the monkey selfie lawsuit has continued to move forward, with the lawyers for photographer David Slater filing their brief in response to PETA’s. As you probably recall, PETA had teamed up with a primatologist named Antje Engelhardt claiming to be “next friends” for the Indonesian macaque monkey named Naruto, who is alleged to have taken the following selfie with David Slater’s camera.
Slater has claimed to hold the copyright on the photo for a long time, though he’s wrong. But PETA is much more wrong in arguing that it can step in and claim both (a) that there is a copyright on the image and (b) that the monkey holds it. Slater is just wrong about the copyright existing.
Either way, the PETA case was easily tossed out of the district court based on the fact that monkeys can’t get copyrights under US law (US laws don’t apply to animals unless specifically stated — this is why farms aren’t legally considered murder camps, no matter what some vegetarians might say). And, of course, PETA appealed. And we expect it will go about as well as the district court case. But it may go even worse.
That’s because in the reply, Slater’s lawyer points out that not only can a monkey not hold a copyright, but also that PETA has even less standing than before, because the primatologist, Antje Engelhardt, has decided she’s no longer a next friend of our buddy Naruto, the smiling monkey.
On appeal, the crazy got crazier. Dr. Engelhardt withdrew from the
case. That leaves PETA, which does not allege any relationship with the
monkey, as the monkey’s sole next friend.
Two putative next friends filed this action: PETA and Dr. Engelhardt,
a primatologist who alleged that she has “known, monitored, and studied
Naruto since his birth.” ER 23. It may well be that the relationship with
Naruto Dr. Engelhardt alleged is “significant” under Coalition of Clergy v.
Bush. However, Dr. Engelhardt moved to withdraw from the case, informing
the Court that she “will not continue as a next friend to Appellant in this
proceeding.” This Court granted Dr. Engelhardt’s motion, thus leaving
PETA as Naruto’s lone putative next friend.
This is a fairly big problem for PETA and its big time (seriously) lawyers from the (previously respectable) law firm of Irell & Manella.
Unlike Dr. Engelhardt, PETA did not allege any relationship with
Naruto, much less a significant one. That is a problem on appeal. PETA is
now in a position very much like the ballot initiative defenders in
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013): a party necessary for
standing at the district court is not participating in the appeal. “[S]tanding
must be met by persons seeking appellate review, just as it must be met by
persons appearing in courts of first instance.” Id. at 2661 (internal quotation
marks and citation omitted).
All of the Naruto relationship allegations in the Complaint concern
Dr. Engelhardt; none involve PETA…. PETA alleges no
connection to Naruto, an Indonesian monkey who lives roughly 10,000
miles from PETA’s headquarters in Virginia.
In other words, even if Engelhardt had standing, PETA doesn’t.
The filing also contains its fair share of monkey jokes, so we’ll just end this post with a few of those:
Under controlling Ninth Circuit precedent, monkey see, monkey sue
is not good law under any Act of Congress unless the legislative text plainly
grants non-human animals standing to sue.
The only pertinent fact in this case is that Naruto is a monkey suing
for copyright infringement.
Either way, one hopes that the court makes quick work of this case as well, but it is 9th Circuit, which perhaps deserves copyright on its… creative interpretations of copyright law at times. Hopefully this isn’t one of those cases.