PETA Fights to Revive ‘Monkey Selfie’ Copyright Suit

[photo credit: David Slater/court exhibit]

SAN FRANCISCO (CN) – Fighting to revive a copyright suit over monkey selfies, a lawyer told a Ninth Circuit panel on Wednesday that non-human corporations shouldn’t have more rights than animals to protect artistic works.

“There is nothing in the Copyright Act that would give a corporation standing to sue. It’s a legal fiction to even suggest that a corporation is an author,” said attorney David Schwarz, representing People for the Ethical Treatment of Animals, or PETA.

Schwarz asked a three-judge panel to overturn the dismissal of PETA’s lawsuit against nature photographer David John Slater and others that profited from the distribution of selfie photos snapped by a now-8-year-old Indonesian monkey named Naruto in 2011.

U.S. District Judge William Orrick III dismissed the suit in February 2016, finding animals lack standing to sue for copyright infringement.

Schwarz argued that even though the Copyright Act of 1976 mentions corporations, it does not give them the right to sue. He said Congress did not explicitly exclude animals from owning copyrights and that legislators intentionally made the concept of authorship broad and all-encompassing.

“The definition of authorship was purposely left undefined, based on a functional definition of origination going back to the 1880s,” Schwarz said. “There is no definition, no clear articulation of categories that would fall under that.”

But Slater’s attorney, Andrew Dhuey, countered that nothing in the Copyright Act “even hints” that animals have the right to file copyright suits.

“‘Monkey see, monkey sue’ will not do in federal court, not unless Congress plainly says non-human animals have standing,” Dhuey told the circuit judges.

Attorneys fighting the appeal also claim PETA brought the lawsuit in bad faith – not to defend the artistic rights of a monkey, but rather to drum up publicity and raise money for its own animal rights agenda.

“This case is not about one monkey in Indonesia and his copyright,” said Angela Dunning, representing Slater’s codefendant, the publisher Blurb Inc. “This case is brought as a means of highlighting a larger policy issue that is important to PETA… animal liberation.”

Dunning said declaring Naruto a copyright owner would trigger a cascade of absurd results and legal questions – including whether a monkey’s offspring can inherit copyrights and whether monkeys must be served written notice to join or intervene in lawsuits involving their works of art.

When Orrick dismissed the suit for lack of standing, he cited the 2004 Ninth Circuit ruling Cetacean Community v. Bush, which held animals lack standing to sue unless specifically authorized by law.

Schwarz claims that case was entirely different because aquatic mammals were suing a government agency for violations of the Endangered Species Act. Naruto’s case must be looked at using a different lens because it involves a private dispute and private right of action, he said.

Slater and Blurb also argued that PETA cannot sue as a next friend of Naruto because it lacks the required “significant relationship” to claim next friend status. The lawsuit initially named PETA and German zoologist Antje Engelhardt as next friends of the crested macaque. Engelhardt said she has “known, monitored and studied Naruto since birth,” but the primatologist withdrew from the case on appeal.

Schwarz said because the issue of next-friend status was not addressed by the lower court, the Ninth Circuit should not consider that argument. Were the case remanded to U.S. District Court, Schwarz said PETA could present evidence of its relationship with the monkey.

Putting aside the “next friend” issue, U.S. Circuit Judge N. Randy Smith, sitting on the panel by designation, focused his questions on Naruto’s standing to sue based on alleged harm suffered.

“What is the injury here?” Smith asked. “What damage is there?”

Schwarz replied that the need for an injunction to stop the misuse and misappropriation of Naruto’s creative works serve as the basis of the injury.

“I don’t think you’ve given me a case to substantiate [your argument],” Smith told the PETA attorney.

Dunning also told the circuit panel that a ruling in favor of Naruto could have a chilling effect on future experimental and artistic works by nature photographers like Slater.

“The only way this work reached the public is that Mr. Slater took his camera there, developed the film and put the pictures out in the world,” Dunning said. “If a monkey has standing to enforce the Copyright Act, those pictures would never come out because [Naruto] can’t grant a license, and he can’t grant permission. He can’t tell us if he very much wanted his pictures to reach us.”

Dhuey also urged the circuit judges to award his clients attorneys’ fees for the appeal, given that PETA has forced Slater to spend nearly two years fighting the “frivolous” litigation.

“It’s really unfair that my client has been dealing with these arguments at the District Court and with this panel,” Dhuey said. “It’s really a waste of resources.”

Along with Smith, U.S. Circuit Judge Carlos Bea and visiting U.S. District Judge Eduardo Robreno of the Eastern District of Pennsylvania also heard arguments on Wednesday.

Schwarz is with Irell & Manella in Los Angeles. Dhuey is in private practice in Berkeley, and Dunning is with Cooley LLP in Palo Alto.

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