United States: PETA And Opponents Sling Arguments In "Monkey Selfie" Case

Last Updated: December 14 2015
Article by Nicholas M. O'Donnell

We reported in September on the lawsuit filed in California over the so-called "Monkey selfie" that underscored some of the limits of copyright protection.  One of the defendants, Blurb, Inc., the publisher of photographer David Slater's picture, has moved to dismiss, and People for the Ethical Treatment of Animals has responded.  The back and forth is, well, something akin to the infamous barrel full of monkeys.

The issue first rose to prominence because "A photograph taken by a monkey" was included in the Third Edition of the Compendium of U.S. Copyright Office Practices as an example of something incapable of copyright.  The Complaint, brought on behalf of "Naruto," framed its claims like this:

Naruto has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater's unattended camera, that human would be declared the photographs' author and copyright owner. While the claim of authorship by species other than homo sapiens may be novel, "authorship" under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto. 

Blurb's motion to dismiss is short and to the point.  As the introduction summarizes:

The Copyright Act affords no rights or protections to animals, the courts have repeatedly found that human authorship is required for copyright protection, and the U.S. Copyright Office has outright rejected any assertion that Copyright Act protects "photograph[s] taken by a monkey." Accordingly, Next Friends cannot establish that Naruto owns a valid copyright, much less that it was infringed by Blurb.

The motion also suggests that Naruto, the "plaintiff," is not, under the allegations of the Complaint, even the animal that took the disputed image.  The fundamental argument of the motion is that an animal cannot have standing to sue under the Copyright Act for the basic reason that the Copyright Act does not say they can:

As the Ninth Circuit has explained, Congress must "make its intention clear before [courts] will construe a statute to confer standing on a particular plaintiff." Cetacean, 386 F.3d at 1175. No congressional intent to confer rights on animals is remotely evident in the Copyright Act. To the contrary, the plain language of the Copyright Act demonstrates that Congress intended to extend protection only to human beings.

Even where a statute has been more specifically directed to animal welfare, that implicit purpose is not enough.  And, Blurb argues, the Complaint candidly acknowledges that the damages it seeks are to remediate lost habitat, not recover economic loss for intellectual property.  If all that were not enough, the motion goes into detail about the, shall we say, anthropomorphic ways that copyright holders are described ("man," "human being," etc.).

PETA does not take this lying down.  It argues for a broader interpretation of the Copyright Act, and insists that Naruto was indeed responsible for taking the pictures.  It suggests that to the extent there is dispute over whether computers can be considered authors for copyright purposes, so too should animals at least be part of the discussion.  PETA argues that the text of the Copyright Act is focused on authorship and ownership, not the species of that author or owner.  PETA frames the choice by Congress not to define "author" as the absence of a limitation on that definition to just human beings.  It weakens this point substantially by saying that the acknowledgment that "employers" can be owners, therefore extending ownership beyond humans.  But an employer is either a person or an incorporated entity, about which there is no dispute as to standing.

More broadly, the PETA brief is a work of advocacy to expand the law.  It is well written and organized, but clearly intended as an effort to change what the law is.  That is nothing novel in and of itself.  But the result it seeks certainly would be.  It is, to say the least, unlikely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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