The US Court of Appeals for the Ninth Circuit issued a decision in the so-called “Monkey Selfies” case affirming the district court’s dismissal of claims brought by Naruto, a crested macaque, holding that the animal lacked statutory standing to claim copyright infringement of photographs or “selfies” alleged to have been taken by Naruto, because the Copyright Act does not expressly authorize animals to file copyright infringement suits. Naruto v. David John Slater, et. al., Case No. 16-15469 (9th Cir., Apr. 23, 2018) (Bea, J) (Smith, J, concurring in part).
In 2011, Naruto—a then-seven-year-old crested macaque living in a reserve on the island of Sulawesi, Indonesia—encountered the unattended camera of wildlife photographer, David Slater, and allegedly used Slater’s camera to take several photographs of himself (the Monkey Selfies). In 2014, Slater and his publishing partners published the Monkey Selfies in a photography book. Throughout the book, Slater included admissions that Naruto took the Monkey Selfies, describing how Naruto pressed the shutter button on the camera and posed to take his own photos.
In 2015, People for the Ethical Treatment of Animals (PETA) filed a complaint for copyright infringement against Slater and his publishers as “next friend” on Naruto’s behalf, asserting that Naruto was the photographer and owner of the resulting Monkey Selfies. The district court granted Slater’s motions to dismiss, concluding that Naruto failed to establish statutory standing under the Copyright Act. PETA appealed as Naruto’s next friend.
Before delving into Naruto’s standing under Article III and the Copyright Act, the Ninth Circuit devoted some time to its denial of PETA’s next-friend standing. The Court first noted that PETA failed to meet the requirement to show a “significant relationship” with Naruto, and in a rather scathing footnote challenged PETA’s motivations on the monkey’s behalf, referring to Naruto as an “unwitting pawn in [PETA’s] ideological goals.” Moreover, citing Supreme Court of the United States precedent in Whitmore v. Arkansas, the Court declined to expand next-friend standing beyond what is permitted by the asserted statute. The Court noted, however, that Naruto’s lack of a next friend does not destroy his standing to sue as having a “case or controversy” under Article III.
Turning to Article III standing, the Ninth Circuit cited its own decision in Cetacean Community, wherein all of the world’s whales, dolphins and porpoises, through a self-appointed lawyer, alleged facts to establish a case or controversy under Article III (with the court eventually dismissing the Cetacean case on lack of statutory standing). In Naruto’s case, because the complaint alleged that Naruto was the author and owner of the Monkey Selfies and suffered “concrete and particularized economic harm” as the result of the claimed copyright infringement, the Court found that Naruto established Article III standing.
Naruto did not fare so well as to the requisite statutory standing under the Copyright Act, however. Again citing Cetacean, the Ninth Circuit explained that an Act of Congress must plainly state that animals have standing to sue under a particular statute. Since the Copyright Act does not expressly authorize animals to file copyright infringement suits, and given the statute’s “text as a whole,” which uses terms that imply humanity, marriage and heirs, the Ninth Circuit’s precedent required the Court to interpret the statute to exclude animals and thus determine that Naruto lacked the necessary statutory standing.
Affirming the district court’s dismissal of claims for copyright infringement, the Ninth Circuit also granted Slater’s request for appellate attorneys’ fees and remanded to the district court for a determination of those fees.
Judge Smith concurred in part, agreeing that the appeal should be dismissed because the federal courts lacked jurisdiction to hear the case, but disagreeing with the majority’s conclusion that next-friend standing is non-jurisdictional. He instead opined that PETA’s failure to meet the next-friend standing was the reason for the court’s lack of jurisdiction.