No More Monkey Business: The Ninth Circuit Finds Monkeys Cannot Sue for Copyright Infringement
May 9 2018
The Ninth Circuit was recently faced with a novel issue: Does a crested macaque, or generally speaking, a monkey, have the right to sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement? Unless you’re familiar with this case, you’re probably wondering what occurred to give rise to Naruto, the monkey, bringing suit for copyright infringement. In fact, you probably have several other questions, such as how did Naruto obtain a copyright? Who infringed Naruto’s copyright? Who brought suit on Naruto’s behalf? And last, but not least, can Naruto sue someone for copyright infringement? Well, if you’re interested in at least one of these questions, you’re in the right place.
In 2011, a wildlife photographer named David Slater was visiting a reserve on the island of Sulawesi, Indonesia, where Naruto lived, and may still live. While visiting the site, Mr. Slater left his camera sitting unattended and Naruto simply could not help himself. Naruto ventured over to the camera and began taking various photographs, including multiple selfies, which have now become known as the “Monkey Selfies.” Slater and Wildlife Personalities, Ltd. subsequently published the Monkey Selfies in a book that Slater created through Blurb, Inc.’s website in December 2014. The book identifies Slater and Wildlife Personalities as the copyright owners, but admits several times throughout the text that Naruto took the photographs himself.
In response to the publication, in 2015, People for the Ethical Treatment of Animals (“PETA”) and Dr. Antje Engelhardt, an individual who studied the crested macaques in Sulawesi, Indonesia for over a decade, and who has been familiar with Naruto since his birth, brought suit on Naruto’s behalf. Specifically, the complaint alleged that because Naruto took the photographs, he is the owner of the photographs and the relevant copyrights, rendering the use by Slater and Wildlife Personalities infringement.
In response to the complaint, Slater, Wildlife, and Blurb moved to dismiss the lawsuit for lack of standing and for failure to state a claim. The district court granted the motions to dismiss, finding that the complaint did not state facts sufficient to establish statutory standing under the Copyright Act. In response, PETA and Dr. Engelhardt appealed on Naruto’s behalf.
On appeal, the Ninth Circuit first addressed whether PETA had standing to bring the claim on Naruto’s behalf as his “next friend.” In short, the Ninth Circuit found that PETA could not bring the claim on Naruto’s behalf for two reasons: (1) because PETA failed to allege facts to establish the required significant relationship between the “next friend” and the real party in interest and (2) because an animal cannot be represented, under U.S. law, by a “next friend.” Although Dr. Engelhardt had a significant relationship with Naruto, he withdrew from the case shortly after the appeal was filed. As for PETA, there were no allegations supporting a significant relationship, and in fact, the Court discussed at length how PETA had failed to live up to the title of “friend” as it abandoned the appeal before the hearing after it reached a settlement, which did not include Naruto as a party, that resulted in a payment to PETA, which led Judge Bea to contemplate if Naruto would have sued PETA for breach of a confidential relationship if he could recognize the abandonment.
In any event, the Court found that even if PETA had a significant relationship with Naruto, “next friend” standing has a narrow scope, which is no broader than what is permitted by statute. Unfortunately for animals, the statutes do not expressly authorize “next friend” standing on their behalf. Accordingly, the Ninth Circuit found that absent express authorization from Congress, there is no right of “next friends” to bring suit on behalf of animals.
But rather than ending its analysis there, the Court found that it must address the merits of Naruto’s case because lack of a “next friend” does not destroy his standing to sue, as having a “case or controversy” under Article III of the Constitution. Federal Rule of Civil Procedure 17 obligates the court to “consider whether [incompetent parties] are adequately protected,” even where they have no “next friend” or “guardian.” Accordingly, a “next friend” or a guardian is not necessary for an incompetent person to be protected. A court may find that the person’s interests would be adequately protected by the appointment of a lawyer. In fact, a prior action was brought by the “Cetacean Community,” through a self-appointed lawyer, against the United States Navy for its use of sonar systems without any purported “next friend.”
Addressing the Article III standing issue, the Court found that because the complaint alleges that Naruto is the author and owner of the Monkey Selfies, and that he suffered concrete and particularized economic harms as a result of the infringing conduct by the Appellees, Naruto had Article III standing to bring his claim.
Next, the Court addressed whether Naruto has statutory standing under the Copyright Act to sue for infringement. Following the Cetacean Court, the Court held that the rule is simple: “if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.” Accordingly, because the Copyright Act does not expressly authorize animals to file copyright infringement suits, the Court held Naruto lacks statutory standing to sue under the Copyright Act. As a result, the Ninth Circuit affirmed the decision of the district court.