“The show business has all phases and grades of dignity, from the exhibition of the monkey to the exposition of the highest art in music or the drama which secures for gifted artists a world-wide fame princes well might envy.” ~ P.T. Barnum
Are photographic “selfies” a uniquely human conceit? Parties in a Northern District copyright lawsuit who purport to represent “Naruto” – the crested macaque monkey who in what might be described as a “primate whim of self-promotion” grabbed the camera of wildlife photographer David John Slater and took a series of his own “monkey selfies” to the delight of millions who have seen the images –argue “no.” These parties, including the People for the Ethical Treatment of Animals (“PETA”) have alleged that Naruto exercised “independent, autonomous action” in operating defendant David John Slater’s camera and taking the now famous series of pictures of himself. As a result, plaintiffs argued, Naruto is the true copyright holder and entitled to defendants’ profits from selling copies of the popular photographs. Judge Orrick disagreed, holding, on January 28, that, at least under the Copyright Act, an animal cannot be an “author.”
Judge Orrick’s decision turned on the issue of statutory standing – i.e., whether Congress has granted a particular plaintiff a right to sue under the statute at issue. The Copyright Act, he noted, protects “original works of authorship” that are fixed in a tangible medium “by or under the authority of the author.” The question was whether this confers any rights upon animals like Naruto. Three sources guided Judge Orrick in reaching his conclusion that Naruto lacks standing.
First, Judge Orrick looked to the language of the statute itself. The Copyright Act does not define “works of authorship” or “author.” Plaintiffs argued that this made standing available to anyone, including animals other than humans. But Judge Orrick followed the rationale of Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), in which the Ninth Circuit had rejected an organization’s effort to sue on behalf of the world’s whales, porpoises, and dolphins. In that case, the Ninth Circuit stated, “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.” The Copyright Act, Judge Orrick found, did not “plainly” extend the concept of authorship or statutory standing to animals.
Next, Judge Orrick cited multiple Supreme Court and Ninth Circuit decisions that had referred to “persons” or “human beings” in analyzing authorship under the Copyright Act. In contrast, plaintiffs had not cited, and he had not found, any case “that expands the definition of authors to include animals.”
Finally, Judge Orrick noted that the Copyright Office “agrees that works created by animals are not entitled to copyright protection.” In its Compendium of U.S. Copyright Office Practices, the Copyright Office included a section titled “The Human Authorship Requirement” that provides that only works of authorship created by a human being will be registered. Similarly, another section titled “Works That Lack Human Authorship” expressly provides that works not created by a human being are not copyrightable, specifically excluding works produced by “nature, animals, or plants,” and listing “photograph taken by a monkey” as a specific example. Plaintiffs argued that these provisions do not apply because the monkey selfies were taken abroad and not subject to the registration requirement, but Judge Orrick found the Compendium nevertheless had persuasive value as to the proper interpretation of the Copyright Act.
Judge Orrick thus concluded that, “[i]n light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office,” plaintiffs had not demonstrated that Naruto has standing under the Copyright Act. While Judge Orrick acknowledged plaintiffs’ argument that this result was “‘antithetical’ to the ‘tremendous [public] interest in animal art,’” he reasoned that argument “should be made to Congress and the President, not to me.” So, absent an act of Congress, budding primate artists are likely not entitled to profit from their original works of art, even though that art might otherwise be copyrightable if produced by a human. Instead, that’s just monkey business.