“Monkey-Selfie” Copyright Case Appealed to Ninth Circuit

August 2, 2016

In 2011, Naruto took a series of selfies with a camera set up on a nature reserve in Indonesia. His big eyes and great smile were only a small part of what made his selfies wildly popular. Eventually the camera’s owner, photographer David Slater, published and began to sell the selfies through Blurb, Inc. This has become the rather simple background of what is now complex copyright infringement case headed for the 9th Circuit Court of Appeals following a dismissal of the original suit in January.

The problem? Naruto is a monkey; a crested macaque, to be precise.

Credit: David Slater via Wikimedia Commons

Credit: David Slater via Wikimedia Commons

Last September, PETA (People for the Ethical Treatment of Animals) filed a copyright infringement suit against Slater, Blub, and Wildlife Personalities, Ltd. (which claims co-ownership of the copyrighted image) on Naruto’s behalf. PETA claimed that “[w]hile the claim of authorship by species other than homo sapiens may be novel, ‘authorship’ under the Copyright Act . . . is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto.” In its Complaint, PETA quotes several passages from Slater’s book which credited Naruto with taking the selfies. The Complaint sought an unspecified amount of damages.

Defendants filed a Motion to Dismiss in response to the Complaint, claiming a lack of standing. Per the Motion, “imagining a monkey as the copyright ‘author’ in Title 17 of the United States Code is a farcical journey Dr. Seuss might have written.” On January 28, 2016, the court issued an Order granting the Motion, citing the Compendium of U.S. Copyright Office Practices’ “Human Authorship” requirement.

PETA’s July 28 appeal specifically attacks the Order’s use of case law interpreting the Endangered Species Act, which unlike the Copyright Act, specifically defines who has standing to sue. PETA also relies on Burrow-Giles v. Sarony, which defines an author as “he to whom anything owes its origin.” This appeal has just started, but should be be more fun than a barrel of monkeys!

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