BREAKING: 9th Circuit rules that Naruto has no standing under US Copyright Act

Naruto 😍

If you thought that the infamous Monkey Selfie case was over, well, you were ... wrong!

A few weeks ago IP enthusiasts were in fact 'thrilled' to learn that - despite the out-of-court settlement agreement concluded in 2017 - the US Court of Appeals for the 9th Circuit would rule anyway on the case brought by PETA (as next friend) against now economically struggling wildlife photographer David Slater over copyright ownership of a series of selfies taken by Celebs crested macaque Naruto.

Today, the Court has ruled that 'an animal ha[s] constitutional standing [Article III standing] but lack[s] statutory standing to claim copyright infringement of photographs known as the "Monkey Selfies."' 

More specifically, the panel confirmed that the "[US] Copyright Act does not expressly authorize animals to file copyright infringement suits."

Background

But what happened before today's ruling? Here's a quick recap.

In 2014 the Wikimedia Foundation rejected Slater’s takedown request to remove from a Wikipedia page one of the photographs taken by Naruto. The Foundation did so on grounds that no copyright could subsist in a work created by an animal. It also concluded that the argument by Slater that he had befriended a group of macaques and set up the photographic equipment, so that they would use it and possibly take pictures (with him editing the resulting photographs) held no value.

In a separate lawsuit against Slater, PETA – admittedly on behalf of Naruto (as 'next friend') – sought a decision that would acknowledge that works created by an animal hold a valid copyright, of which the animal, as author, is the owner. More specifically, PETA alleged that the defendants had infringed Naruto’s copyright pursuant to sections 106 and 501 of the US Copyright Act, by displaying, advertising, reproducing, offering for sale, and selling copies of the Monkey Selfies.

In 2016 the US District Court for the Northern District of California dismissed the action, on grounds that “the [US] Copyright Act does not confer standing upon animals like Naruto”.The court recalled that the notions of ‘works of authorship’ and ‘author’ are not defined in the statute. This was a deliberate choice on the side of the legislature, intended “to provide for some flexibility.” 

However, the court referred to a case decided in the area of environmental law: Cetacean. There, the Cetacean Community, created by the “self-appointed attorney for all of the world’s whales, porpoises, and dolphins,” had brought an action on behalf of the Cetaceans for violations of the Endangered Species Act, the Marine Mammal Protection Act, and the National Environmental Policy Act. The 9th Circuit examined the language of each statute and excluded that US Congress had wished to confer standing on animals. The court concluded that: “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.” 

According to District Court hearing the Monkey Selfie case, a similar conclusion could be reached in relation to the US Copyright Act. Decisions of the US Supreme Court and 9th Circuit have referred to ‘persons’ or ‘human beings’ when addressing issues of authorship. In addition, in its Compendium of Copyright Practices, the US Copyright Office clearly states that:

“To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants.”

Kat Selfie

The Compendium specifically refers to “[a] photograph taken by a monkey” as an instance of work that cannot be protected. Courts take into consideration the US Copyright Office’s interpretation in appropriate circumstances, and in this case the District Court also referred to the Compendium to conclude that Naruto could not be the author of a protectable work.

Further to an appeal filed by PETA before the 9th Circuit, the case was (initially) settled out of court. 

Today's ruling

In today's ruling Circuit Judge Bea questioned, first of all, PETA's assertion of its 'next friend' status to represent claims made for Naruto, also because an animal cannot be represented by a 'next friend'. Concluding otherwise would conflict with Cetacean, in which the 9th Circuit held that a group of cetaceans could demonstrate Article III standing. Hence, Naruto's Article III standing would not depend on PETA's sufficiency as a guardian or as a 'next friend'.

This said, Circuit Judge Bea turned to consideration of Naruto's standing under the Copyright Act, and concluded that "[s]everal provisions of the Copyright Act ... persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act." Among other things, the judge referred to the fact that the Act:

• Allows the children (whether legitimate or not) of the author to inherit certain rights;
• The author's widow/widower owns the whole of the author's entire termination interests, unless there are surviving children/grandchildren (in which case he/she would own half).

"The terms 'children', 'grandchildren', 'legitimate', 'widow', and 'widower' all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law.", wrote the Court.

Comment

The conclusion is not particularly surprising. While the Monkey Selfie case might seem like an 'unusual' one, it raises important issues that will likely become more sensitive in the foreseeable future. 

The question of non-human authorship and ownership of copyright in works created by non-humans is not really (or just) about whether a monkey can be the owner of copyright in the photographs that it takes, but whether increasing sophisticated technologies, eg under the umbrella of artificial intelligence, would (and should) result in the broadening of the understanding of what (rather than who) an author is. 

If you are wondering what artificial intelligence is already doing in the creative field, you can listen to this or take a look at this.