San Francisco
13 July 2017
Reporter: Barney Dixon

Monkey see, monkey sue: Naruto’s day in court


PETA’s allegations in the ‘monkey selfie’ lawsuit are “ideological expressions” and have nothing to do with its relationship with the crested macaque monkey Naruto, nor its imposed “next friend” status.

Hearing oral arguments in the case yesterday (12 July), Judges Carlos Bea, Randy Norman Smith and Eduardo Robreno questioned counsel for both parties in the litigation, which centres on a selfie taken by Naruto and then claimed by the owner of the camera, David Slater.

Slater claims to own the copyright to the monkey selfies because his camera and equipment were used to take them.

PETA disputed this and has launched a legal battle against Slater, arguing that Naruto is the “author” of the photo and therefore entitled to the copyright.

The judges questioned PETA’s attorney, David Schwartz, on the standing of Naruto to own the rights to the monkey selfie.

Schwartz opened his arguments by saying that the case is one of “first impressions”.

But the first impressions of the three judges seemed to be ones of incredulity at PETA’s arguments and often sarcasm over the finer details of the case.

Often interrupting Schwartz, the judges focused on the withdrawal of Naruto’s original “next friend” Dr Antje Engelhardt from the case. Engelhardt was said to have had a “significant” relationship with the monkey through her work with macaque monkeys.

PETA’s initial complaint referred only to the relationship between Engelhardt and Naruto and PETA did not allege any relationship with the monkey.

Judge Bea took issue with this, arguing that, “no matter how committed and dedicated PETA may be to animals in general and Naruto in particular … our circuit law says that you must allege facts which show a significant relationship between PETA and Naruto”.

“The only allegations in the complaint that I found on that score were the allegations of Dr Engelhardt, who said she had known, monitored and studied Naruto since his birth. That may have been sufficient in the district court’s discretion to define a significant relationship—but Dr Engelhardt for reasons unknown is no longer a ‘next friend’.”

He added: “PETA’s allegations have nothing to do with its relationship with Naruto other than the ideological expressions of dedication and commitment.”

Continuing the questioning of Schwartz, Smith turned the argument to one of injury and said that Naruto could not suffer from any injury or damage based on copyright, as the monkey would be unable to utilise the rights for financial—or any other—gain.

Schwartz argued that the existing injury is a loss of Naruto’s statutory right, but Smith repeatedly cut him off, stating that, for something to be an injury, there must be damage.

Bea also questioned whether Naruto’s descendents would benefit from the copyright, as outlined in the statute, but overall this point was unresolved as there were no determinations of even Naruto’s standing, let alone the standing of the monkey’s relatives.

PETA’s complaint also named Blurb as a defendant, the publisher of David Slater’s book focused on the monkey selfie.

Angela Dunning, who spoke on behalf of Blurb, said that giving Naruto standing would set a precedent for animals to own intellectual property rights, which would subsequently cause more confusion when trying to adhere to other portions of the statute, such as descendents acquiring the rights.

Andrew Dhuey, on behalf of the defendant, Slater, opened his arguments with quip: “Monkey see, monkey sue will not do in federal court.”

Dhuey focused on the argument that the subject of the litigation is a decision for Congress and that if animals are to have standing, then it must be explicitly stated in the copyright statute.

“We do not see anything in the copyright [statute] that says, or even hints, that animals have standing.”

He added: “In the absence of that plain statement, we find no standing. If it’s not there plainly, then there’s no standing.”

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