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No Monkey Business – Ninth Circuit Rules Monkey Can’t Bring Copyright Suit Over Selfie


June 13, 2018
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Ninth Circuit Rules Monkey May Not Hold Copyright Under U.S. Copyright Act

Naruto, arguably the world’s most famous crested macaque, has lost his long-standing legal battle over a “selfie” she took back in 2011. A non-human may not hold copyright under the U.S. Copyright Act, according to the Ninth Circuit Court of Appeals.

Ninth Circuit Rules Monkey Can't Own Copyright of Selfie

Photo courtesy of Naruto, the crested black macaque (Photo available via Public Domain)

Monkey Selfie Prompts Lawsuits

In 2011, British photographer David Slater traveled to Indonesia to capture the crested black macaque. While he was shooting, one of the primates hijacked his camera and took over 100 selfies. Not surprisingly, one of the photos that Naruto took of herself went viral after Slater posted it online.

Wikimedia Foundation, which owns Wikipedia, posted the “selfie” in its online database of public domain images. Upon discovering the image, Slater demanded that the company remove it. He argued that the copyright should vest in him because he owns the camera that captured the image and expended significant resources to capture the shot. Wikipedia refused to take down the photo, maintaining that the selfie is in the public domain because “non-human authors” are not granted an automatic copyright of photographs that they take.

The U.S. Copyright Office agreed. In 2014, it clarified that works created by non-humans are not entitled to copyright protection. “To qualify as a work of ‘authorship’ a work must be created by a human being…. Works that do not satisfy this requirement are not copyrightable,” the Copyright Office advised. “The Office will not register works produced by nature, animals, or plants.”

The same year, Slater and Wildlife Personalities, Ltd. published the monkey selfies in a book that Slater created through Blurb, Inc.’s website. The publication of the photos prompted the People for the Ethical Treatment of Animals (PETA) to file suit against Slater and the publisher. The animal rights group, which filed suit under a legal principle that allows someone to sue in the name of another person who is unable to do so, maintained that the macaque was the rightful copyright owner. The copyright infringement suit argued:

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.

In 2016, U.S. District Judge William Orrick held that the monkey could not hold a copyright. “Congress and the President can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act.” PETA and Slater subsequently reached a settlement and sought to dismiss the suit. The settlement required Slater to donate 25 percent of any future revenue generated from using or selling the monkey selfies to charities that protect the crested macaques’ habitat in Indonesia. However, the Ninth Circuit refused to dismiss the appeal, electing to address the standing issue raised in the case.

Ninth Circuit Ends Copyright Lawsuit

The Ninth Circuit ruled in April that the monkey lacks statutory standing to bring a copyright infringement lawsuit under the Copyright Act. “Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey — and all animals, since they are not human — lacks statutory standing under the Copyright Act. We therefore affirm the judgment of the district court,” Judge Carlos Bea wrote.

Interestingly, the Ninth Circuit found that the monkey’s claim has standing under Article III of the U.S. Constitution under its prior decision in Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004). In that case, the Ninth Circuit held that all of the world’s whales, dolphins, and porpoises (collectively known as “cetaceans”), through their self- appointed lawyer, alleged facts sufficient to establish standing under Article III. With regard to Naruto, the Ninth Circuit concluded that the monkey had suffered concrete and particularized economic harms as a result of the infringing conduct, harms that could be redressed by a judgment declaring Naruto as the author and owner of the selfies. Nonetheless, the Ninth Circuit dismissed the suit due to Naruto’s lack of statutory standing to bring the copyright infringement suit, concluding that animals lack statutory standing to sue under the Copyright Act.

In reaching its decision, the Ninth Circuit also questioned PETA’s motives in bringing the suit and seeking to dismiss its appeal rather than face a court loss that would be against its ideological interests. A footnote in the opinion states:

But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own.

Nonetheless, PETA characterized the decision as a partial victory. “The court reaffirmed that nonhuman animals have the constitutional right to bring a case to federal court when they’ve been wronged, but the opinion still missed the point, which was that Naruto the macaque undeniably took the photos, and denying him the right to sue under the U.S. Copyright Act emphasizes what PETA has argued all along — that he is discriminated against simply because he’s a nonhuman animal,” PETA said in a statement.

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Do you have any questions? Would you like to discuss the matter further? If so, please contact me, David Einhorn, or the Scarinci Hollenbeck attorney with whom you work at 201-806-3364.

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