In 2016, People for the Ethical Treatment of Animals (“PETA”) brought an action on behalf of Naruto, a Crested Macaque residing in Indonesia. PETA asserted claims of copyright infringement against a wildlife photographer who published a book which included a selfie taken by Naruto using the photographer’s camera. The United States District Court for the Northern District of California granted the photographer’s motion to dismiss, including for failure to state a claim. PETA appealed. The Court of Appeals held that though Naruto had constitutional standing to bring an action, he lacked statutory standing to claim copyright infringement and, therefore, an animal, including a monkey, may not sue humans, corporations, or companies for damages and injunctive relief arising from claims of copyright infringement. Naruto v. Slater, No. 16-15469 (9th Cir. Apr. 23, 2018).

In support of this holding, the Court of Appeals cited Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004) quoting Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F. Supp. 45 (D. Mass. 1993), setting forth that “[if] Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue [under a particular statute], they could, and should, have said so plainly.” Id. at 1179. The Court of Appeals in Naruto held, even if a statute at issue refers to “persons” or “individuals,” if an Act of Congress does not plainly state that animals have statutory standing, then animals do not have statutory standing. Naruto, No. 16-15469 at 16. As such, the case was dismissed and the photographer awarded attorneys’ fees.

Naruto affirms prior holdings that animals other than humans lack statutory standing to sue under an Act of Congress unless such statute expressly authorizes animals to sue. The Compendium of U.S. Copyright Office Practices affirms that an original work of authorship may be registered for copyright protection provided that the work was created by a human being. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 101 (3d ed. 2017). The Compendium asserts that copyright law protects “fruits of intellectual labor” that “are founded in the creative powers of the mind.” Compendium (Third) § 101.1(A); Trade-Mark Cases, 100 (U.S. 82, 94 (1879). As such, “the Office will refuse to register a claim if it determines that a human being did not create the work.” Compendium (Third) § 101.1(A); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

Takeaway: Content creators and owners must ensure that work submitted for copyright protection is, in fact, created by a human being and not produced by nature, animals, plants, divine or supernatural beings, or by “a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Compendium (Third) § 101.1(A). Content owners procuring work from third parties may memorialize such assurances in the form of a contract, specifically set forth as representations and warranties.