December 7, 2023

US Judge throws out ‘Monkey Selfie’ Case

Federal District Judge William Orrick III, photographed in his courtroom and chambers in San Francisco. Photo S. Todd Rogers 12/03/2013 063-2013

Federal District Judge William Orrick III, photographed in his courtroom and chambers in San Francisco.
Photo S. Todd Rogers

By Scott Graham, From The Recorder

U.S. District Judge William Orrick has made it official: A crested macaque who allegedly snapped photos of himself does not have standing to bring a copyright suit over the renowned “monkey selfie.”

Orrick dismissed a lawsuit brought by People for the Ethical Treatment of Animals and Dr. Antje Englehardt on behalf of Naruto, the monkey who is said to have borrowed photographer David John Slater’s camera and pressed the shutter.

The case generated colorful and emotional briefing, but Orrick responded with a straight-ahead, no-frills six-page opinion. “Next Friends argue that this result is ‘antithetical’ to the ‘tremendous [public] interest in animal art,’ ” he wrote in Naruto v. Slater. “Perhaps. But this is an argument that should be made to Congress and the president, not to me.”

PETA general counsel Jeff Kerr said he did not know yet if PETA would amend its complaint or appeal Orrick’s ruling to the U.S. Court of Appeals for the Ninth Circuit. “We’ll be reading his opinion very carefully and considering our options,” he said.

Regardless of the outcome, Kerr said the case “made history” by advancing the idea that animals are “living, feeling, breathing creaters who deserve fundamental rights of their own.”

Irell & Manella partner David Schwarz argued the motion for PETA and primatologist Engelhardt.

Friday’s ruling is a win for Cooley special counsel Angela Dunning and solo practitioner Andrew Dhuey, who argued for publishing website Blurb and photographer Slater, respectively.

Dhuey said Friday that he hoped Orrick would order the plaintiffs to cover his clients’ legal fees.

“PETA will keep filing these nutty cases until they are required to pay their targets’ attorney fees,” Dhuey said. “I hope Judge Orrick will deter PETA from doing this again by granting David’s upcoming fee motion.”

The parties dispute exactly how the photographs were taken, but Orrick accepted PETA’s allegations that Naruto deliberately pressed the shutter multiple times after becoming aware of his own reflection in the lens.

Even so, Orrick concluded, controlling Ninth Circuit case law makes clear that animals do not have legal standing to bring lawsuits unless expressly provided for by statute. And the Copyright Act makes no mention of animals, Orrick wrote, while the Ninth Circuit and the U.S. Supreme Court have explicitly referred to “persons” or “human beings” when analyzing authorship under the act.

Further, the Copyright Office has formally stated that “to qualify as a work of ‘authorship,’ a work must be created by a human being.”

“The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto,” Orrick concluded. “In light of the plain language of the Copyright Act, past judicial interpretations of the act’s authorship requirement, and guidance from the Copyright Office, they have not.”

IMAGE:U.S. District Judge William Orrick III, Northern District of California

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