PETA Has Lost Its Monkey's 'Next Friend' In Its Crazy Copyright Case

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PETA Has Lost Its Monkey's 'Next Friend' In Its Crazy Copyright Case

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.

PETA Has Lost Its Monkey's 'Next Friend' In Its Crazy Copyright Case

PETA Has Lost Its Monkey's 'Next Friend' In Its Crazy Copyright Case
We reported in September on the lawsuit filed in California over the so-called “Monkey selfie” that underscored some of the limits of copyright protection.  One of the defendants, Blurb, Inc., the publisher of photographer David Slater’s picture, has moved to dismiss, and People for the Ethical Treatment of Animals has responded.  The back and forth is, well, something akin to the infamous barrel full of monkeys.

The issue first rose to prominence because “A photograph taken by a monkey” was included in the Third Edition of the Compendium of U.S. Copyright Office Practices as an example of something incapable of copyright.  The Complaint, brought on behalf of “Naruto,” framed its claims like this:

Naruto has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner. While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. 

Blurb’s motion to dismiss is short and to the point.  As the introduction summarizes:

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 motion also suggests that Naruto, the “plaintiff,” is not, under the allegations of the Complaint, even the animal that took the disputed image.  The fundamental argument of the motion is that an animal cannot have standing to sue under the Copyright Act for the basic reason that the Copyright Act does not say they can:

As the Ninth Circuit has explained, Congress must “make its intention clear before [courts] will construe a statute to confer standing on a particular plaintiff.” Cetacean, 386 F.3d at 1175. No congressional intent to confer rights on animals is remotely evident in the Copyright Act. To the contrary, the plain language of the Copyright Act demonstrates that Congress intended to extend protection only to human beings.

Even where a statute has been more specifically directed to animal welfare, that implicit purpose is not enough.  And, Blurb argues, the Complaint candidly acknowledges that the damages it seeks are to remediate lost habitat, not recover economic loss for intellectual property.  If all that were not enough, the motion goes into detail about the, shall we say, anthropomorphic ways that copyright holders are described (“man,” “human being,” etc.).

PETA does not take this lying down.  It argues for a broader interpretation of the Copyright Act, and insists that Naruto was indeed responsible for taking the pictures.  It suggests that to the extent there is dispute over whether computers can be considered authors for copyright purposes, so too should animals at least be part of the discussion.  PETA argues that the text of the Copyright Act is focused on authorship and ownership, not the species of that author or owner.  PETA frames the choice by Congress not to define “author” as the absence of a limitation on that definition to just human beings.  It weakens this point substantially by saying that the acknowledgment that “employers” can be owners, therefore extending ownership beyond humans.  But an employer is either a person or an incorporated entity, about which there is no dispute as to standing.

More broadly, the PETA brief is a work of advocacy to expand the law.  It is well written and organized, but clearly intended as an effort to change what the law is.  That is nothing novel in and of itself.  But the result it seeks certainly would be.  It is, to say the least, unlikely.

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.
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