David Slater's macaque monkey selfie
David Slater’s macaque monkey selfie ()

SAN FRANCISCO — The nation may soon have an answer to a legal question for the ages: Does a monkey have standing to sue for copyright infringement?

At a hearing Wednesday, U.S. District Judge William Orrick III of the Northern District of California seemed highly skeptical of a lawsuit brought by animal rights advocates on behalf of Naruto, the crested macaque who shot a series of sensational selfies using a nature photographer’s camera.

Many federal statutes give humans the right to sue on animals’ behalf but the Copyright Act isn’t one of them, Orrick said. The judge indicated that he would likely offer People for the Ethical Treatment of Animals and Dr. Antje Englehardt a chance to amend their complaint, but said he doesn’t see a viable way for them to establish standing to sue.

Representing Naruto’s interest, Irell & Manella’s David Schwarz had argued that the definition of “authorship” under the Copyright Act is broad enough to cover the so-called “monkey selfie” and has been interpreted to encompass more than just individual human beings, pointing in particular to corporations. Schwarz conceded that there are no examples of an animal being granted a copyright but added that courts historically denied rights to people “because of the color of their skin.”

“That’s quite a stretch, Mr. Schwarz,” Orrick said.

“I certainly wouldn’t make that the centerpiece of any argument today,” Schwarz responded. He then added that slaves could not own patent rights prior to the passage of the Fourteenth Amendment.

The photo of the grinning primate went viral after Naruto allegedly captured it with the camera of photographer David John Slater on the island of Sulawesi in Indonesia. There is some dispute between the parties over whether the monkey in the photo is actually Naruto or one of the other monkeys Slater encountered on his visit.

Slater has also claimed a copyright interest in the photo, Schwarz pointed out. “The question is not whether there is an author,” Schwarz said. “If there is an author, it must follow that there is a copyright.”

An interpretation that bars animals from copyright protections, he said, could also foreclose protection for works created by artificial intelligence.

Slater’s lawyer, Berkeley solo Andrew Dhuey, advised Orrick not to consider policy arguments. “We’re engaging in a something of a Socratic debate here in a federal court and that’s not appropriate,” Dhuey said.

Cooley special counsel Angela Dunning, representing co-defendant Blurb, a self-publishing website that published a book containing the monkey photos, added that it was Slater’s act of publication that warranted copyright protection and not the monkey’s click of his camera. “If it weren’t for the human intervention here, this photo never would have gone to the public,” Dunning said.

Naruto’s lawyers are demanding Slater hand over profits from the book, saying the money would be used to help preserve the monkey’s habitat on an Indonesian island.

At the close of the hearing, Dhuey asked the judge to dismiss the case without leave to amend. But Orrick, citing an earlier ruling from the U.S. Court of Appeals for the Ninth Circuit that admonished him for declining to grant leave to amend, said he was likely to give the plaintiffs that opportunity. The judge said that the plaintiffs might not take him up on that offer if the issues they wish to appeal are teed up after his written order.

Irell’s Schwarz said following the hearing that plaintiffs would need to see the judge’s order before determining how to move forward.

Contact the reporter at rtodd@alm.com.