Monkey See, Monkey Do…Monkey Own? The Curious Case of Naruto v. Slater

JD Supra covers CEI’s amicus brief in Naruto v. Slater.

When wildlife photographer David Slater set up his camera in the rainforests of Indonesia, he hardly expected to ignite a copyright battle with a monkey. Nonetheless, the legal dispute between Slater and Naruto, a crested macaque represented by his “next friends,” People for the Ethical Treatment of Animals (“PETA”) has captured the attention of the news media.

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In September 2015, PETA sued Slater and Blurb on behalf of Naruto in U.S. federal court in California, claiming that they violated Naruto’s copyrights in the so-called “Monkey Selfies.” As the creature to whom the photographs owed their origin, PETA argued, Naruto was the “author” of the Monkey Selfies under the Copyright Act of 1976. While the Copyright Act protects “original works of authorship”, 17 U.S.C. § 102(a), it does not define “authorship” or “author” 17 U.S.C. § 101.

Slater rebutted Naruto’s case primarily by arguing that Naruto did not have standing under the Copyright Act, because animals cannot be authors. In its January 28, 2016 ruling, the District Court agreed with Slater for three reasons. First, if Congress intended to give animals standing under the Copyright Act, surely it would have said so. Second, while “author” may be undefined in the statute, many other case decisions have interpreted the term to mean a “human” or a “person.” None have extended the term to animals. Finally, the U.S. Copyright Office Compendium (the “Compendium”), which provides guidance on issues of copyright law, explicitly states that a work of “authorship” must be created by a human being in order to be copyrightable.

PETA appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit on March 20, 2016. After oral argument in July 2017, the parties began to discuss a settlement and the court granted their motion to stay the appeal proceedings during those talks. The parties reached a settlement on September 8, 2017, with Slater agreeing to give 25 percent of his gross earnings to charities dedicated to protecting the crested macaque and its habitat. In return, PETA dropped its appeal. As part of their joint motion to dismiss the appeal and vacate the judgment, the parties have asked for vacatur, which would nullify the record in the lower court. The Competitive Enterprise Institute, a libertarian think tank, filed an amicus brief on September 13, 2017, urging the court to deny vacatur. The brief argues, amongst other things, that since Naruto is not a party to the settlement, PETA does not have standing to move for vacatur. The Ninth Circuit has not yet ruled on whether it will grant the motion, although the settlement itself can still stand even if vacatur is denied.

Read the full article at JD Supra.