Monkey Business at the Ninth Circuit
The Monkey Selfie Strikes Back

I previously blogged about my favorite copyright dispute of all time, the infamous Monkey Selfie, here and here.  As  a quick refresher, British photographer David Slater traveled to Indonesia to photograph macaque monkeys.  He left his camera unattended on the jungle floor, where a monkey grabbed it and took a series of handsome selfies, including this one.  Slater returned to the U.K., where he asserted copyright ownership in the image, including by sending a cease and desist letter to Wikimedia for including the image in its database of public domain images.  Under U.S. law, only human beings can be authors of copyrightable subject matter.  Accordingly, Wikimedia gave Slater the stiff-arm and refused to take the image down.  Although Slater made noise about filing suit, he never did, and the controversy died down.

Enter PETA – People for the Ethical Treatment of Animals.  Dubbing the monkey “Naruto,” PETA sued Slater and others, alleging that the defendants infringed Naruto’s copyright by reproducing, distributing and displaying the selfie.  The defendants moved to dismiss for lack of standing under Article III and the Copyright Act.  The court granted the motion, finding that Congress did not grant statutory standing to animals under the Copyright Act.

The Copyright Act does not define the terms “work of authorship” or “author.”  PETA argued that anyone who creates a work of authorship – even an animal – has Copyright Act standing. Macaque monkeys, PETA reasoned, are “highly intelligent, capable of advanced reasoning and learning from experience”; have “stereoscopic color vision with depth perception”; and are “vision dominant.”  The court noted, however, that the Copyright Act “makes no mention of animals anywhere,” and the Supreme Court and Ninth Circuit have referred to “persons” and “human beings” in analyzing authorship claims.  Moreover, the Copyright Office will not register claims of authorship by animals.  Indeed, the Compendium of U.S. Copyright Office Practices states that to “qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.”  Compendium 313.2  Indeed, the Compendium specifically cites as an example of uncopyrightable authorship “a photograph taken by a monkey.”

The court thus had little difficulty concluding that Naruto lacks standing to assert a claim of authorship under the Copyright Act.  Naruto is not done monkeying around, however.  An appeal has been filed with the Ninth Circuit, and Naruto’s opening brief is scheduled to be filed on June 28, 2016.  Following the appeal is sure to be more fun than a barrel of monkeys.

You can read the District Court opinion