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Establishing Copyright Is Not Monkey Business

Establishing Copyright Is Not Monkey Business
by lowndes

May 3, 2018

By: Alexandrea R. Simser

Next time you think of commissioning your dog to create some artwork, you’d better think twice. According to the Ninth Circuit Court of Appeals, animals do not have standing as copyright owners to sue for infringement under the Copyright Act. The “monkey selfie” case, as it has come to be known, originated in 2011, when nature photographer David Slater traveled to Indonesia to photograph an endangered species of crested macaque. When Slater left his camera unattended in the forest, the now-famous macaque, Naruto, managed to take several self-portraits, bearing an eerily human-like (but incredibly endearing) grin. After Slater published the pictures, PETA filed suit against Slater and the publisher, claiming “next friend” status to sue on Naruto’s behalf and seeking to administer the proceeds of the suit for the benefit of Naruto’s endangered species.The district court dismissed the case and PETA appealed. Although the parties jointly moved to dismiss the case after reaching a settlement under which a portion of the proceeds from the sale of the photos would go to groups that protect the endangered macaques, the Ninth Circuit denied the motion, citing several factors – including the importance of the issues, the substantial resources the court had already expended on the case, and the fact that Naruto was not a party to the settlement agreement (leaving open the possibility that she might sue in the future, once she’s developed her writing skills, of course).On first blush, the court’s refusal to dismiss pursuant to a settlement seems like a waste of resources but digging deeper, the issues involved could potentially have much further reaching impacts than public interests suing on behalf of animals – particularly in artificial intelligence and other contexts involving non-human, computer authors.Relying heavily on Cetacean Community v. Bush, a 2004 case finding that certain marine mammals did not have statutory standing to sue under environmental statutes based on the plain language of the statutes, the court ultimately decided last week that, although animals might have constitutional standing under Article III, they similarly lack statutory standing to sue under the Copyright Act, based on its plain language. Although the court went to great lengths to resolve what it deemed to be an important issue, the case leaves some equally important copyright law questions open, particularly, what are the extent of Slater’s rights in the images? How much creative effort is required in order to establish copyright in a work?

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