Monkey Business: A Primate Can't Claim Copyright In Selfies

Order Granting Motions to Dismiss, Naruto, et al. v. Slater, et al., Case No. 15-cv-04324-WHO (Judge William Orrick)

"The show business has all phases and grades of dignity, from the exhibition of the monkey to the exposition of the highest art in music or the drama which secures for gifted artists a world-wide fame princes well might envy." ~ P.T. Barnum

Are photographic "selfies" a uniquely human conceit? Parties in a Northern District copyright lawsuit who purport to represent "Naruto" - the crested macaque monkey who in what might be described as a "primate whim of self-promotion" grabbed the camera of wildlife photographer David John Slater and took a series of his own "monkey selfies" to the delight of millions who have seen the images -argue "no." These parties, including the People for the Ethical Treatment of Animals ("PETA") have alleged that Naruto exercised "independent, autonomous action" in operating defendant David John Slater's camera and taking the now famous series of pictures of himself. As a result, plaintiffs argued, Naruto is the true copyright holder and entitled to defendants' profits from selling copies of the popular photographs. Judge Orrick disagreed, holding, on January 28, that, at least under the Copyright Act, an animal cannot be an "author."

Judge Orrick's decision turned on the issue of statutory standing - i.e., whether Congress has granted a particular plaintiff a right to sue under the statute at issue. The Copyright Act, he noted, protects "original works of authorship" that are fixed in a tangible medium "by or under the authority of the author." The question was whether this confers any rights upon animals like Naruto. Three sources guided Judge Orrick in reaching his conclusion that Naruto lacks standing.

First, Judge Orrick looked to the language of the statute itself. The Copyright Act does not define "works of authorship" or "author." Plaintiffs argued that this made standing available to anyone, including animals other than humans. But Judge Orrick followed the rationale of Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), in which the Ninth Circuit had rejected an organization's effort to sue on behalf of the world's whales, porpoises, and dolphins. In that case, the Ninth Circuit stated, "if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly." The Copyright...