Persuading a panel of appellate judges that a monkey can hold a copyright is a tough sell.
And the U.S. Court of Appeals for the Ninth Circuit didn’t seem to like the “monkey selfie” copyright case any more than Judge William Orrick III did. Not from the sound of Wednesday’s oral argument in Naruto v. Slater.
Ninth Circuit Judges Carlos Bea and N. Randy Smith and seemed highly skeptical that Naruto, a crested macaque who lives in an Indonesian jungle, could be an “author” within the meaning of the Copyright Act, even if it did snap the shutter on the now-famous portraits.
The judges also sounded concerned about the departure of primatologist Antje Englehardt from the case as Naruto’s next friend. People for the Ethical Treatment of Animals, which litigated the case with Englehardt at district court, said it can serve as next friend, but the judges said it wasn’t clear PETA has the requisite relationship with the monkey.
“What would you prefer we do?” Judge Carlos Bea asked Andrew Dhuey, the Berkeley attorney representing photographer David Slater. “I know you want us to affirm, but on what basis?”
Dhuey said he would prefer the authorship grounds. Bea noted that if the court rejected the appeal on next friend grounds, “A new suit may be brought by Naruto through a next friend properly pleaded.”
“I guess that’s my next case, your honor,” Dhuey said.
Slater befriended a group of macaques in 2011 on the island of Sulawesi. After setting up his camera on a tripod, the monkeys “grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens,” Slater has written. “They played with the camera until of course some images were taken.”
PETA and Englehardt identify the macaque in the self-portraits as Naruto, part of a group Engelhardt says she has monitored for years. PETA, represented by Irell & Manella partner David Schwarz, argues that Naruto holds a copyright interest as the “author” of the photo. Slater and his publisher Blurb Inc, which is represented by Cooley special counsel Angela Dunning, dispute PETA’s characterization of the facts but argue that animals have no standing to claim authoriship under the Copyright Act.
Bea and Smith went right to the standing issue Wednesday.
“What is the injury here?” Smith asked repeatedly. “There is no way [for Naruto] to acquire or hold some money, which the copyright infringement would give. There’s no loss as to reputation. … There’s nothing.”
“It is injury in the sense that it is a violation of the statutory right,” Schwarz argued.
“That doesn’t give you injury,” Smith replied.
Schwarz argued that Congress deliberately left “authorship” undefined in the Copyright Act, and that the Supreme Court has said it should be construed in its broadest constitutional sense.
But Bea said the court must consider the Copyright Act in its entirety, and parts of it provide that copyrights descend to children and grandchildren “whether legitimate or not.”
“In the world of Naruto, is there legitimacy and illegitimacy?” Bea asked.
“There’s certainly a fact question as to the community in which they live,” said Schwartz. He said courts can’t take away claims that Congress has provided for.
Cooley’s Dunning said that is true as far as it goes. “Here Congress hasn’t provided for a copyright claim brought by an animal,” she said. “In fact, the language points exactly the opposite way.”
And Dhuey argued that Ninth Circuit case law is explicit that animals have no standing to bring suits unless clearly provided in a statute. “Monkey see, monkey sue will not do in federal court,” he said, drawing laughter from a group of law students taking in the argument.
Dhuey pressed the court to award his client attorney fees on appeal, but the court was noncommittal on that front. Dhuey charged in a press conference afterward that PETA is using the case as a vehicle to generate publicity and donations.
PETA general counsel Jeffrey Kerr said he felt good about Schwartz’s argument and wouldn’t read too much into the court’s questions, which he said had been robust for both sides. He said PETA would be willing to amend its complaint if the court has concerns about next friend status.
Kerr said it’s clear an author is one who records a photograph, and there shouldn’t be an exception for animals. “If this was any other author, there’d be no question,” he said.