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The so-called “monkey selfie” lawsuit has been widely questioned for turning the courts into a circus, but an appellate brief filed Thursday shows the case could lead to valuable clarity on the issues of non-human standing and who is eligible for “next friend” status.
The legal fight began in 2015, after PETA and a primatologist teamed up to seize copyright ownership for photos an Indonesian monkey named Naruto allegedly snapped of himself with wildlife photographer David Slater’s camera.
In January, U.S. District Judge William Orrick found that monkeys don’t have standing to sue under the Copyright Act, but never actually reached the issue of whether they could have ownership in copyrighted works.
David Schwarz, who represents PETA on behalf of Naruto, filed an appeal in July arguing that the Copyright Act should be interpreted broadly. “Because copyright protection exists primarily to advance society’s interest in increasing creative output, it follows that the protection under the Copyright Act does not depend on the humanity of the author, but on the originality of the work itself,” the appeal reads.
While Schwarz paints his case as one that could have effects on future issues affecting artificial intelligence and copyright, Slater’s attorney makes it clear in his reply brief’s opening line that he doesn’t take the argument seriously and neither should the 9th Circuit.
“This case — winner of the U.S. Chamber of Commerce Most Ridiculous Lawsuit of 2015 award — is poised to retain its title in 2016,” writes Andrew J. Dhuey.
Dhuey argues that not only does a monkey lack standing to sue, but PETA now also lacks standing to sue on his behalf.
The initial lawsuit was filed with a primatologist who worked with Naruto, Antje Engelhardt, acting as the primate’s “next friend,” which is a party who acts in the interest of someone who lacks the legal capacity to sue on his or her own.
But, for reasons not yet revealed, Engelhardt dropped out of the lawsuit after the district court’s decision. That leaves only PETA, which Dhuey says has “alleged no relationship” with Naruto and therefore cannot act as his next friend.
“However passionate PETA may be about establishing monkey standing for copyright infringement suits, that passion is not a ‘significant relationship’ with Naruto,” Dhuey writes. “If it were, then hundreds and perhaps thousands of animal charities would be eligible next friends of Naruto, qualified to bring suit on his behalf.”
While Dhuey argues PETA’s outside counsel in this action, led by Schwarz, is “indisputably sophisticated in the field of intellectual property,” the legal team chose the wrong path to pursuing this fight because 9th Circuit case law doesn’t support their position. In 2004, it upheld a district court’s ruling that the world’s cetaceans, an order of mammals including dolphins and narwhals, do not have standing to sue.
“A realistic, responsible approach for PETA would have been to concede from the start that Cetacean Community requires dismissal of this case for lack of standing,” Dhuey writes. “After a stipulated judgment at the district court, PETA could then have presented its non-human animal standing argument to the active members of this Court in a petition for initial hearing en banc (a proceeding where Cetacean Community does not bind the judges).”
As that is not the case, Dhuey says PETA should have to pay Slater’s attorneys fees for forcing the court “to address legal positions that are unreasonable under controlling Ninth Circuit authority.” Further, he questions PETA’s motive in bringing the case, after the group claimed it made “legal history” despite the loss at the lower court.
“Such litigation conduct suggests that PETA saw pursuing this surefire loser of a case for copyright infringement as a means to gain publicity and donations,” he writes. “PETA should be deterred from bringing such a frivolous action again, and Slater should be compensated for enduring this case.”
PETA’s general counsel Jeff Kerr says Dhuey is ignoring the fundamental issue that copyright protection lies with the author of the photo.
“These photographs just didn’t magically appear,” says Kerr. “They were created as a result of the intentional actions of Naruto.”
Slater has thrown his own monkey wrench into PETA’s claims, although it hasn’t been a pivotal issue for the courts, by claiming the organization has been fighting for the wrong monkey this whole time. He says it wasn’t a male named Naruto who snapped the shutter on his camera, but rather a female named Ella. (Read Slater’s full account of the photoshoot here.)
Kerr disagreed, saying it was clearly Naruto — who is alive and well in Indonesia.
“[Slater is] as entirely wrong about that as he is about claiming that he should have the copyright,” says Kerr. “The law is clear that the author who took the photographs deserves copyright protection.”
If there was indeed a monkey mix-up, it remains to be seen if Ella has a next friend who will intervene on her behalf.
You can read the reply brief in full below.
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