Welp. Here we go again. For many, many years, we've been tracking the insane legal situation of the selfie-taking monkey
, whose name we were told only recently is "Naruto." Early on in this saga, back in 2011, our focus was on how the photographer whose camera was used, David Slater, had no legitimate claim
to the copyright in the image, in large part because the copyright goes to whoever took the photo, and the copyright cannot go to a monkey
, because copyright law is limited to "persons." Every so often Slater would pop up somewhere or somehow and yell about this -- twice representatives of his even threatened us with completely bogus
However, things took a turn for the even more bizarre
a year ago when PETA, an organization that sometimes appears to focus more on professional trolling rather than on the "ethical treatment of animals" as its name suggests, claimed to represent the monkey
(Naruto!) and sued Slater himself for falsely claiming the copyright. While we agree that Slater doesn't hold the copyright, neither does the monkey
, because no one holds the copyright.
Amazingly, PETA, claiming to represent the interests of an Indonesian monkey, somehow secured the services of a really big name law firm, Irell & Manella, whose name should always be associated with the fact that it took this insane case. Irell & Manella (again, somehow, this is considered a respected law firm) took the nutty position that there must be a copyright
in the image, and thus the monkey deserves to get it. It completely ignores the fact
that not everything gets a copyright. It's as if the lawyers at Irell & Manella don't even understand how copyright law works.
The judge in the case made quick work of this and confirmed, as pretty much everyone already recognized, that a monkey can't have copyright
. But, this is PETA, and PETA won't give up until the trolling has completed its course. So it appealed
and it has now filed its opening brief
I have no idea if David Schwartz at Irell & Manella is doing this pro bono or actually wasting PETA's money here, but if I were a PETA supporter/donor, I'd be pissed off
that this is the way the organization is burning money:
The Constitution authorizes Congress “[t]o promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.” U.S. CONST. art. I,
§ 8, cl. 8. Neither the Copyright Clause nor the Copyright Act contains on its face a
limitation solely to authors with human attributes or characteristics. The district
court erred in carving out such an exemption here. It is not necessary—indeed it is
antithetical to the purpose of the Copyright Act—to specify who can be an author,
as that question is determined by looking at the attributes of the work sought to be
protected. The Copyright Act protects “original works of authorship,” not works of
“human authors.” See 17 U.S.C. § 102. Moreover, the Monkey Selfies have all the
attributes required for protection under the Copyright Act. To exempt them from
protection on the sole ground that Congress did not specify that animals can be
authors assumes erroneously that such specification would have been necessary.
This is pure nuttiness. The monkey selfies do not have all the attributes required for protection, because protection only goes to human beings
. Why? Because copyright is supposed to act as an incentive to create
. The monkey has no fucking clue
about the copyright, and it had nothing to do with the incentive to create. Because it's a monkey
. In Indonesia. Named Naruto. Who has no idea that some ridiculous lawyers are now in an appeals court in California pretending to represent its "interests."
Since enacting the Copyright Act of 1790, Congress and the Supreme Court
have instructed that the copyright laws should be interpreted liberally in order to
safeguard the “general benefits derived by the public” from works of authorship.
Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 429 (1984). Because
copyright protection exists primarily to advance society’s interest in increasing
creative output, it follows that the protection under the Copyright Act does not
depend on the humanity of the author, but on the originality of the work itself. The
Copyright Act was intended to be broadly applied and to gradually expand to
include new forms of expression unknown at the time it was enacted. Congress and
the courts have explained that copyright protection is critical to ensuring the
general public has access to works of authorship. The public places value in these
works—and, self-evidently, so do the Defendants.
I cannot believe that lawyers are actually using the case that legalized the VCR (Sony v. Universal Studios) as the basis for arguing a monkey gets copyright. And copyright protection for a monkey
is in no way
critical for "ensuring the general public has access to works of authorship." It is not as if the monkey having or not having the copyright changes, in any way, the monkey's incentive to click buttons on cameras left on the ground.
The lawyers pretending to represent Naruto go on to claim that even though there's pretty clear 9th Circuit precedent saying that animals lack standing to sue unless expressly
granted in the law, that doesn't apply to copyright law, because copyright law is just so awesome. And they continue to claim that copyright is necessary because the work is so valuable -- which is, you know, not how copyright law works:
Yet if animals cannot be authors, there is no copyright protection for their
works.... This is fundamentally at odds with the fact
that “[c]opyright protection extends to all ‘original works of authorship fixed in
any tangible medium’ of expression.” ... It is
also antithetical to the public interest, and hence, the stated purpose of the
Copyright Clause. There is no doubt that the general public has an interest in works
of art, regardless of their authors’ characteristics or attributes. The tremendous
interest in Naruto’s work and Defendants’ attempts to exploit that interest (and to
bar others from doing so) only buttresses this conclusion.
The idea that the lawyers at Irell and Manella are literally arguing that the public domain is "antithetical to the public interest" should mark them as complete numbskulls on copyright law.
One hopes that the 9th Circuit will make quick work of this case and toss it out. But, of course, there is the fear that the 9th Circuit will do what it does all too often in copyright cases... and come out with some nutty decision. Remember, this is the circuit that (thankfully, only for a short while before it reconsidered
) decided that there was a brand new separate copyright for every actor's performance
in a film -- so you could see the case come out with some totally ridiculous result. So, stay tuned. Plenty of us will be, though I can assure you that a certain macaque monkey in Indonesia could not care any less about these proceedings, even if he's officially the plaintiff in the case.