No Monkey Business Will Be Permitted in the Court

Under the U.S. Copyright laws “Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  Copyright protection includes works of authorship in pictorial form, including photographs.

With this background I’d like to report on a case filed in the U.S. District Court for the Northern District of California in September 2015.  As alleged in the Complaint, sometime in 2011, a photographer by the name of David Slater briefly left his camera unattended and a 6 year old named Naruto, using Mr. Slater’s camera, took a number of selfies without any assistance from Mr. Slater.  Mr. Slater located the selfies that were taken by Naruto on his camera and, he, along with the co-defendant, Blurb, Inc., published and widely distributed the selfies online beginning in 2014, all without the authorization of Naruto.  Naruto filed the complaint against Slater and Blurb, Inc. and alleged that Slater and Blurb, Inc. infringed his rights of copyright by reason of the unauthorized distribution of Naruto’s selfies.
 
On first blush, this sounds like a fairly clearcut case of copyright infringement.  The selfies purportedly were original works of Naruto which were reproduced and widely distributed by Mr. Slater and Blurb, Inc. without Naruto’s permission. So why should these set of facts be of particular interest?  What if Naruto was a crested macaque monkey that snapped the selfies?  This was the novel question that faced the District Court in the action Naruto v. David John Slater and Blurb, Inc. The case was filed through Naruto’s “Next Friends,” People for the Ethical Treatment of Animals, Inc. (PETA) and Dr. Antje Engelhardt, a professor of behavioral ecology and anthropology.

Slater and Blurb, Inc., filed a Motion to Dismiss based on several legal theories.  First, the defendants asserted that Naruto lacked standing to pursue the claim through the courts because Naruto was a monkey.  Though PETA and Dr. Engelhardt, as Naruto’s “Next Friends,” stated that their intent was to use the proceeds from the commercialization of the selfies for habitat preservation and for the benefit of Naruto’s brethren, the defendants asserted that all of these activities would be pursued without Naruto’s consent since Naruto was not capable of providing consent.  Furthermore, the Defendants asserted that the phrase “works of authorship” in the copyright laws, relate to works by humans, not animals.

Sadly for Naruto, on January 6, 2016 the District Court, in a tentative opinion, held that the U.S. Copyright Act extends to humans, not animals, thereby dashing any hopes Naruto and his brethren might have harbored for the betterment of the primate community.  One can only imagine what the deposition of Naruto would have been like had the case continued. The moral of this story should the decision become final – there will be no monkey business in the district courts, at least with respect to claims of copyright infringement.  It remains to be seen whether Naruto will appeal the District Court’s decision.