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Appellate Court Finds Monkey Lacks Statutory Standing in Copyright Dispute

(April 23, 2018) Not only did Naruto lose its “next friend” PETA, but now it has formally lost its appeal to assert a copyright claim for the famous Monkey Selfies.

The Ninth Circuit found that the crested macaque, as a non-human animal, lacks “statutory standing” to maintain a cause of action for infringement under the U.S. Copyright Act (“Copyright Act”). The case was decided after People for the Ethical Treatment of Animals (“PETA”), which filed the case as the “next friend” of Naruto, filed a motion along with the defendants to dismiss the appeal. The motion was denied.

Naruto became famous when in 2011 wildlife photographer David Slater set up and left his camera unattended and Naruto then took several pictures of itself. Slater and his co-defendants later published the photographs in a book and sold them individually. The book acknowledged Naruto took the pictures, which PETA argued made Naruto the author and copyright owner. PETA, acting as next friend of Naturo, sued Slater and his co-defendants for damages. The trial court found it lacked jurisdiction over the matter because an animal may not be an author under the Copyright Act. For an earlier discussion of the lawsuit, see our September 22, 2015 article.

While agreeing that it was proper to dismiss the case, the Ninth Circuit was split as to why. The majority found Naruto had Article III—or constitutional—standing to bring the case but, under the Copyright Act, it lacked statutory standing. The concurring opinion found there was no constitutional standing to bring the case.

The majority opinion said the complaint alleged that Naruto was the author of the Monkey Selfies, that it suffered concrete and particularized economic harm as a result of Slater’s actions, and that the harm could be redressed by declaring Naruto owner of the Monkey Selfies.  However, the majority found that under the Copyright Act animals lack statutory standing to maintain a cause of action.

The concurring opinion noted that Article III is limited to “cases” and “controversies” and a “next friend” cannot originate a cause of action on behalf of an animal. Moreover, the concurrence said a next friend standing “is particularly susceptible to abuse.” To allow a next friend to represent an animal would raise questions such as “whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures. . . . do animals want to own property such as copyrights?”

PETA and the defendants had requested the court dismiss the case before it ruled because they had reached a settlement. Cheryl Dancey Balough, adjunct professor of copyright law at Chicago-Kent College of Law, notes that the court refused to dismiss a few days before issuing it opinion—apparently in part out of a concern that PETA’s motive was inconsistent with its position throughout the case that it was a “next friend” to Naruto.

While differing in some of their reasoning, the majority and concurrence agreed in their harsh comments about PETA. The majority found that “PETA appears to have failed to live up to the title of ‘friend.’ After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. . . . Naruto was not a party to the settlement, nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something from the settlement with Slater, although not anything that would necessarily go to Naruto.” And from the concurring opinion, “[W]hen it came down to a possible negative, precedential ruling from the panel, PETA quickly sought to protect the institution, not the claimed real party in interest. PETA used Naruto as a ‘pawn to be manipulated on a chessboard larger than its own case.’”

The appellate court remanded the case to the trial court to determine the amount of attorneys’ fees to be paid to Slater and his co-defendants.

Naruto v. Slater, Ninth Cir. No. 16-15469, issued April 23, 2018.

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