Totally Bananas? Court Urged to Dismiss Monkey’s Copyright Suit

A California federal court was hit with two motions to dismiss Monday, November 10, 2015, arguing that a monkey does not have standing to sue in a United States courtroom.  This case relates to the famous “Monkey Selfie” photo that went viral a few years ago (which has already seen its fair share of litigation to date).  Yet, it is not a person arguing that they have copyright protection over the photograph this time — rather, it is the monkey’s rights that have allegedly been violated, at least according to PETA.

The animal rights’ group filed the complaint in September 2015 on behalf of Naruto, the primate behind “Monkey Selfie,” against UK photographer David Slater and Blurb, Inc., a website used to create and self-publish books. It was Slater’s camera that PETA alleges Naruto, an Indonesian macaque, took the photo of himself in 2011. This picture, and other photos taken by the monkey, was then illegally reproduced by Slater in his book “Wildlife Personalities” and published by Blurb, according to the complaint.

PETA, which brought the suit on behalf of Naruto on the idea that the monkey is a disabled or otherwise incapacitated party, believes that the image belongs to Naruto, not Slater, and that the photographer’s unlicensed and unauthorized reproduction of the photos constitutes blatant copyright infringement. As the complaint states, Naruto “is capable of understanding and manipulating his own reflection,” and “has been accustomed to observing and recognizing his own image” in various reflective surfaces, such as motorcycle and car mirrors. Further, as macaques have opposable thumbs and fingernails instead of claws, Naruto’s “use of his hands in any activity results from his intentional, purposeful, and concentrated action, not mere happenstance or accident,” therefore creating the conclusion, as argued in the complaint, that Naruto “intentionally and intelligently” took the photos for his own enjoyment.

PETA bases the claim around two general theories. The first is that, under federal copyright law, there is no clear limitation on the definition of “author,” allowing for the conclusion that it can be expanded to include animals as well as humans. The second argument PETA lays out on Naruto’s behalf is that no copyright registration is required in order to determine who legally owns the photographs, because the images were taken in Indonesia and therefore do not fall under the definition of a “United States Work,” a key element in proving copyright ownership under federal law.

In his motion to dismiss, Slater responds fairly bluntly to the court—his one and only argument is that a monkey has no standing to sue or state a claim.  Per his motion, Slater points out that Congress has failed to grant animals the authority to sue in the past, even though they could have on more than one occasion.  Using fanciful language representative of what he believes to be the ludicrous lawsuit before him, Slater states that “[i]magining a monkey as the copyright ‘author’ under United States copyright law is a farcical journey Dr. Seuss might have written.”

Slater may have the full backing of the law behind him as well. Not only did he attempt to file the copyright for the photos back in 2012, but the US Copyright Office specifically denied his and all claims to the photographs, stating that it will refuse to register a claim if it concludes that a human being did not create the work. So even if, however unlikely, PETA can convince a judge that monkeys indeed have standing in federal courts, it may not be able to prove that Naruto is still the true copyright holder for “Monkey Selfie” under current law.

Blurb’s motion to dismiss echoes the same basic principle as Slater’s does, but also provides for other interesting arguments as to why the case should be thrown out. Blurb argues that it is simply a self-publishing website, and all users, including Slater when he published “Wildlife Personalities”, must abide by a disclaimer limiting liability against the website.  According to Blurb, the website simply provides the tools necessary for a person to self-publish a book; it does not have a hand in creating the finished artwork nor in fact-checking the book for possible copyright or other violations.

Further, Blurb argues that Naruto might not even be the specific monkey who took the photos in question, pointing out that Slater and others described the monkey as a female macaque at the time “Monkey Selfie” spread across the internet. Naruto, however, is male.  Also, Blurb references that this is not the first time PETA has attempted to represent an animal. In 2013, PETA tried to sue Sea World on behalf of five orca whales under a theory that the theme park violated the whales’ rights under the Thirteenth Amendment’s prohibition against slavery. The court in that case held the whales lacked standing to sue.

And much like how the whale case was quickly dismissed for not being able to hold water, it seems very unlikely that Naruto’s claim for ownership over “Monkey Selfie” will be legally seen as anything more than simple monkey business.

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