Monkey in the Middle Redux: Animal Rights Group Sues to Claim Copyright On Behalf of Monkey

Stephen Carlisle October 8, 2015

As a general rule, I do not write blog posts about the filing of a copyright infringement lawsuit. At the stage when a complaint is filed, all that is present are the bare allegations, devoid of any proof, and as this complaint plainly shows, any kind of outrageous statement can be made.

On September 21, 2015, the animal rights activists group People for the Ethical Treatment of Animals filed a Federal copyright infringement lawsuit on behalf of “Naruto,” an Indonesian crested black macaque. ¹ Naruto, claims the lawsuit, is responsible for the famous “monkey selfie” that was the subject of a previous blog post. ²

In case you have forgotten, this is the photo in question:

The lawsuit seeks damages from David Slater, the photographer who set up the shoot, and his book publisher. ³ PETA seeks to collect all the proceeds from the monkey selfie which it claims will be used “solely for the benefit of Naruto, his community of crested macaques and preservation of their habitat…” ⁴

Minus a few unavoidable administrative costs, and shipping and handling, I’m sure.

So the real purpose of the lawsuit is money, and of course publicity for PETA. As for the second part, they have already succeeded. Every major news outlet has run a story on the lawsuit.

This is not the first time that PETA has sued as the “next friend” of an animal with a lawsuit that, to be polite, greatly stretches the boundaries of coherent legal theory or reasoning. As reported by The Guardian:

“Peta has on occasion pursued lawsuits that were widely viewed by other legal experts as offering little chance of success – for example, a 2011 lawsuit accusing the SeaWorld parks of keeping five killer whales in conditions that violate the US constitution’s ban on slavery. A federal judge dismissed the suit, saying the 13th amendment applied only to humans.” ⁵

Thus, it should come as no surprise that the complaint is replete with legal errors and faulty logic.

Firstly, there are questions as to whether PETA has correctly identified the monkey in question. All the previous reports had the monkey being a female. Yet PETA claims the monkey is a male. As this article form Motherboard points out:

“[C]overage of the monkey selfie controversy last year identified the macaque as female. The photographer David Slater identifies the monkey as female in his book, Wildlife Personalities. PETA’s own president, Ingrid Newkirk, identified the monkey as female in a 2014 essay arguing that the monkey should own copyright in the photos.” ⁶

“[The Defendant] [p]hotographer David Slater told us in an email, ‘All you need to know is PETA have no proof they are talking about the same monkey. They hope you will buy into their stunt because an expert is willing to say her monkey is the one in my photos without proof.’” ⁷

Next is the question of the legal ability of PETA to have standing to bring the suit on behalf of Naruto, a legal concept known as “next friend.” According to the Supreme Court of the United States:

“’[N]ext friend’ standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another. Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for ‘next friend’ standing. First, a ‘next friend’ must provide an adequate explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action. [citation omitted] Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, [citation omitted] and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest.” ⁸

PETA’s penchant for seeking publicity by filing dodgy lawsuits may bring into question whether they have Naruto’s best interest at heart, beyond just their saying so. I also fail to see how PETA has any significant relationship with Naruto. This is obviously why they are bringing Dr. Antje Engelhardt along for the ride as a co-plaintiff, since it is alleged that Dr. Englehardt has had contact with Naruto and studied him. ⁹ However, if the Court rules Dr. Englehardt has standing as “next friend,” this does not automatically confer standing on PETA.

Next up, there is the fact that the U.S. Copyright Office has already issued a policy bulletin that “[t]he Office will not register works produced by nature, animals or plants.” ¹⁰ Even further, as reported by the online journal of the American Bar Association:

“The Office gave several specific examples of things that could not be copyrighted under this section, such as a mural painted by an elephant, a song authored by the Holy Spirit and a photograph taken by a monkey. (emphasis added)

“According to the National Journal, Bill Roberts, acting associate register of copyrights and director of the office of public information, said the Copyright Office deliberately added real-life examples in order to avoid confusion.” ¹¹

PETA disputes the legal precedent to be afforded an opinion of the Copyright Office stating:

“My understanding is that they’ve never been asked to register a copy of the photograph. I believe they’ve never refused. And the Compendium is the Copyright Office’s opinion on the state of law but is not authoritative. They’re not the legislative body, they are not a court. And we respectfully disagree with their view on that.” ¹²

This is shaky reasoning on three points. Firstly, the Copyright Office has already said, in advance that they will not register Naruto’s photograph, so saying that the Copyright Office haven’t refused registration yet is a non-argument which carries no legal weight.

Next, there is the fact that the Courts of the U.S., most notably the Ninth Circuit Court of Appeals which will govern this case, give great deference to the opinions of the Copyright Office:

“We credit this expert opinion of the Copyright Office—the office charged with administration and enforcement of the copyright laws and registration. [citation omitted] The Copyright Office’s well-reasoned position “reflects a ‘body of experience and informed judgment to which courts and litigants may properly resort for guidance.’” ¹³

Lastly, there is the whole problem of whose copyright law will be applied to the basic question of can a non-human being own a copyright? PETA takes the position that the photo is not a “United States Work” for the purposes of the Copyright Act. ¹⁴ (There will be more about this further on.) This means that if the suit is correct, the country of origin is a country other than the United States. According to the Berne Convention, to which the U.S., Britain and Indonesia are all members, the “country of origin” is the country in which the work is first published. ¹⁵ This is most likely to be the UK where defendant David Slater is a citizen.

Hold on here, because this gets technical. The Berne Convention states that “’published works’ means works published with the consent of their authors.” ¹⁶ If Naruto is the sole author, it is doubtful that he gave permission for the publication, as it is pretty much a given that he does not understand what copyright or publication is. So even though the photo was undoubtedly published on a worldwide basis, Naruto’s lack of consent might mean that his country of which he is a national is the law that governs, or the law of Indonesia, assuming of course that a non-human being is a “national” of any country. PETA’s apparent assertion that Indonesia is the country of origin because the works were fixed there ¹⁷ is incorrect, under the plain terms of the Berne Convention.

The importance of this is that the copyright law of either the UK or Indonesia would have to be examined to decide who the author of the work was. If they were to decide under the applicable law that Naruto created the work alone, but was not an “author” because Naruto is not a human being, then the photo is not protected at all in its country of origin, and therefore is not protected in any Berne country since it is not a work which is “protected under this Convention.” The other possibilities are that Naruto and Slater are co-authors or Slater is the sole author, which means there can be no viable action for infringement brought by Naruto, or its “next friend.”

For this reason alone, the complaint should be dismissed because PETA has failed to allege adequate facts to support their contention that Naruto is the sole owner of the copyright under the laws of the UK or Indonesia, a prerequisite to any enforcement of the copyright in the United States in reliance on the Berne Convention.

The reason why PETA is claiming that the photo is not a “United States work” is to avoid the whole requirement that one must register with the Copyright Office before filing a copyright infringement lawsuit. ¹⁸ This requirement only applies if the work is a “United States work.” ¹⁹ According to section 101 of the Copyright Act, a work is a United States work if it is first published in the United States or “simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States.” This obviously includes the Berne Convention.

The U.S. Copyright Act does not define what “simultaneous publication” is, but the Berne Convention does. The Berne Convention states that “[a] work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication.” ²⁰ So if the photo was published in any Berne country and the U.S. within thirty days of each other, then the photo is a “United States work” and subject to the registration requirement. A registration, as discussed above, that is going to be summarily rejected by the Registrar of Copyrights.

So now we come to the true question: can a monkey be an author for purposes of copyright? Here, PETA winds up hamstrung by its own arguments. If Naruto needs his “next friends” to litigate for him based upon his “mental incompetence, or other disability,” how does he form the requisite intent to create a work of art?

Consider this rather arrogant and snarky exchange between Jeffrey Kerr, the attorney who filed the suit for PETA, and a reporter for the Motherboard website.

………………………………………………………………………………………………..

“Does Naruto know about this lawsuit?

[pause]

Um, the… fact here is that Naruto is unable to come into court himself and so we are standing as Next Friend. Your question is silly, frankly. The issue is as I’ve stated it.

Does Naruto know about his selfies?

[pause]

I have the same response.

Naruto certainly knew at the time that he was engaged in intentional conduct that is obvious from Mr. Slater’s own description of the situation. And Naruto clearly engaged in the purposeful intentional conduct that resulted in the creation of the selfies.

[Later on in the same interview]

So you saying that you think Naruto knows these selfies exist, because he—

That’s not what I’m saying and you should not report that. What I am saying is, alleged in the lawsuit, that Naruto engaged in a series of purposeful, intentional actions. He is very bright. He was aware of the cause and effect relationship between pushing the shutter, his reflection in the camera—this is all admitted by Mr. Slater. The result of his conduct, the original works fixed in a tangible medium, resulted. And that is sufficient for copyright protection.

Can a photographer intentionally create a photo if they don’t know how a photo results from a camera?

Yes, of course.

…………………………………………………………………………………….

This is absolute nonsense. The words that PETA’s attorney is carefully leaving out are the words “authorship” and “creativity.” Remember that according to the United States Supreme Court, the Copyright Act requires “that the work was independently created by the author, and that it possesses at least some minimal degree of creativity.” ²¹ If Naruto does not understand that what he is holding is a camera, does not understand that the camera will make a visual record of whatever it is aimed at, and that he is creating a “selfie” by pressing the shutter, then he has not engaged in a creative act of authorship, he is simply playing with an object.

So, not only is PETA refusing to go on the record to claim that Naruto knew he was creating a “selfie” but based on Slater’s previous statements, as recounted on this blog, that despite hundreds of photographs being taken, only a few were usable and most were out of focus. ²² Clearly Naruto had not even the slightest grasp of what he was doing. In addition, if Slater committed any act which shows “a minimal degree of creativity” then he, at the very worst, is a co-author and cannot be liable for infringement.

If you need any more evidence that this suit is little more than a ridiculous publicity stunt, ask yourself: why hasn’t PETA sued Wikimedia?

Recall that this whole kerfuffle started because Wikimedia took the position that the monkey took the photo and thus the photo was in the public domain and allowed anyone to copy it. The most severe damage being done to Naruto’s interest is by Wikimedia distributing the photo for free, not by the meager money being made by Slater. Slater agrees:

“He added, in reference to the photos being posted on Wikipedia as being under the public domain, ‘And, WHY aren’t PETA suing Wikimedia for loss of royalties? Important question!’” ²³

And finally, The Guardian quotes Harvard Law Professor Lawrence Tribe as commenting on the suit that:

“’It trivializes the terrible problems of needless animal slaughter and avoidable animal exploitation worldwide for lawyers to focus so much energy and ingenuity on whether monkeys own the copyright in selfies taken under these contrived circumstances.’” ²⁴