Appeals Court Skeptical of “Monkey Selfie” Copyright Claim

Posted by on Thursday July 13, 2017 | Copyright/Legal

©David Slater

Judges fired tough questions yesterday at a PETA lawyer arguing a copyright appeal on behalf of a monkey in the case of Naruto v. David Slater. The now famous “monkey selfie” case pits an Indonesian macaque monkey named Naruto against photographer David Slater. In 2011, Naruto picked up Slater’s unattended camera and shot a selfie. Slater published the photograph, precipitating a 2015 copyright infringement claim by PETA on the monkey’s behalf.

Last year, a federal court in California dismissed the case on the grounds that the US Copyright Act doesn’t give animals standing to own copyright. PETA appealed to the US Court of Appeals in San Francisco.

“What’s the injury here?” one of the appeals court judges repeatedly asked PETA attorney David Schwarz during oral arguments yesterday. The judge kept interrupting Schwarz as the attorney tried to answer the question. At one point, the judge lectured Schwarz: “There’s no loss to reputation, there’s no allegation that the copyright could have benefited Naruto. What financial benefits apply to him? There’s nothing.”

Judges also pressed Schwarz on two questions of standing: Whether PETA has so-called “next friend” standing to sue on behalf of the monkey, and whether the monkey has standing under the US Copyright Act to sue as a non-human animal.

With regard to the first question, one of the appeals court judges told Schwarz, “You must allege facts….which show a significant relationship between PETA and Naruto.” The judge went on to say PETA made no claim of any actual relationship with Naruto, only an ideological commitment. That, in the judge’s view, didn’t meet the legal standard for next-friend standing.

With regard to Naruto’s standing to claim copyright infringement, judges voiced strong doubt. “If Congress and the President had 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” in the Copyright Act, one of the judges told Schwarz. “I don’t have any clear direction from Congress under that [Copyright Act] that they ever intended an animal to have any right under the act… What language in there [says] they intended to authorize animals as well as people to sue under the act?”

PETA’s attorney argued for a broader reading of the language of the Copyright Act, which refers to “authorship” of creative works, without specifying that authorship is necessarily limited to people. “There’s no express prohibition on an animal having…standing,” Schwarz argued. He also noted statutory language isn’t always interpreted by its literal or most obvious meaning. For instance, statutes that refer to “he” aren’t interpreted by courts as laws that apply only to men and not women.

The judges went far easier on lawyers for Slater and for Blurb, which is Slater’s book publisher and a co-defendant in the case. “What would you prefer we do? I know you want us to affirm [the lower court ruling in Slater’s favor] but on what basis?” one of the judges asked Slater’s attorney.

“”There’s no plain statement [in the Copyright Act] that animals have standing to sue,” Slater’s lawyer responded.

A decision is expected later this year.

Related: Selfie Copyright Battle: Monkey See, Monkey Sue


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