Ninth Circuit: Animals Not Statutorily Authorized to Bring Copyright Actions

Tuesday, April 24, 2018

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Ninth Circuit: Animals Not Statutorily Authorized to Bring Copyright Actions

Decision Affirms Dismissal of Action Brought by a Monkey Over Ownership of ‘Selfies’ He Snapped

By a MetNews Staff Writer

—AP

The self portrait taken by a maque monkey using the smart phone of a nature photographer.

A monkey who took a series of “selfies” has constitutional standing to bring an action in federal court, the Ninth U.S. Circuit Court of Appeals held yesterday, but he may not maintain an action for violation of a copyright because there is no statutory authorization for an animal to do so.

The majority opinion was authored by Circuit Judge Carlos T. Bea and concurred in by District Court Judge Eduardo C. Robreno of the Eastern District of Pennsylvania, sitting by designation. Circuit Judge N. Randy Smith wrote an opinion in which he concurred in the affirmance of a dismissal, but argued:

“Federal courts do not have jurisdiction to hear this case at all. Because the courts lack jurisdiction, the appeal should be dismissed and the district court’s judgment on the merits should be vacated.”

Bea said in the majority opinion:

“We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act. We therefore affirm the judgment of the district court.”

The action was maintained by People for the Ethical Treatment of Animals, Inc. (“PETA”) on behalf of Naruto, a crested macaque in Indonesia who took his own pictures using the unattended camera of wildlife photographer, David Slater. The “Monkey Selfies” were published in a book from which Slater derived profits.

‘Next Friend’ Status

PETA claimed “next friend” status. The group, Bea said, has no such status, declaring:

“Although Congress has authorized ‘next friend’ lawsuits on behalf of habeas petitioners…, and on behalf of a ‘minor or incompetent person,’…there is no such authorization for ‘next friend’ lawsuits brought on behalf of animals. Our precedent on statutory interpretation should apply to court rules as well as statutes: if animals are to be accorded rights to sue, the provisions involved therefore should state such rights expressly.”

He went on to say:

“Even so, we must proceed to the merits because Naruto’s lack of a next friend does not destroy his standing to sue, as having a ‘case or controversy’ under Article III of the Constitution.”

Bea pointed to the Ninth Circuit’s 2004 decision in Cetacean Community v. Bush in which it was held that all of the world’s whales, dolphins, and porpoises had standing to sue, through their self- appointed lawyer, over injuries allegedly caused by the Navy’s sonar systems. The court said there that “sole plaintiff in this case” was the community of marine mammals.

The action was dismissed based on lack of provision in the environmental laws for a suit by animals.

‘Simple Rule’ Cited

Likewise, Bea said, there is no statutory authorization for a copyright suit by Naruto. He wrote:

“The court in Cetacean did not rely on the fact that the statutes at issue in that case referred to ‘persons’ or ‘individuals.’…Instead, the court crafted a simple rule of statutory interpretation: if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing. The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute. Therefore, based on this court’s precedent in Cetacean, Naruto lacks statutory standing to sue under the Copyright Act.”

The jurist said Slater and his company, co-defendant Wildlife Personalities, Ltd., are entitled to attorney fees in connection with the appeal, to be set by the trial court.

Settlement Reached

Following oral arguments, Slater and PETA announced that a settlement had been reached. While PETA had sued for a declaration that Naruto was owner of the copyright on the photos, and entitled to a disgorgement of profits and creation of a fund to benefit him, the settlement did not involve a direct benefit to him. Though listed in the caption as the plaintiff, he was not a party to the accord.

It was agreed in the settlement that one quarter of future proceeds from the selfies would benefit groups concerned with protection of crested macaques in Indonesia.

The Ninth Circuit was asked in September to dismiss the appeal as vacate the lower court decision by Judge William Horsley Orrick of the Northern District of California, but declined, saying that “denying the motion to dismiss and declining to vacate the lower court judgement prevents the parties from manipulating precedent in a way that suits their institutional preferences.”

In yesterday’s decision, Bea remarked, in a footnote:

“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. It remains unclear what claims PETA purported to be ‘settling,’ since the court was under the impression this lawsuit was about Naruto’s claims. and per PETA’s motion, 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….But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed ‘friend’ having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own.”

The case is Naruto v. Slater, 16-15469.