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US Court of Appeals Wipes Smile off Monkey's Face

Photo: Action camera and monkey. Bali, Indonesia. Alex Erofeenkov via Shutterstock

T he US Court of Appeals for the Ninth Circuit, answering one of the burning legal questions of our age, has ruled that the copyright statutes of the United States do not provide the right to sue to a black crested macaque.1 That is correct, it has been confirmed that a monkey cannot bring a lawsuit to the courts of the United States for copyright infringement.2

Welcome to the case of the Monkey Selfie. I first became aware of this evolving (pun absolutely intended) legal issue back in 2014 as I was preparing to make a presentation on behalf of our legal department at our company's annual meeting. Part of those annual presentations includes an update concerning matters worked on by the legal department during the preceding year.

That year, I had spent a fair amount of my time dealing with intellectual property issues, particularly related to patent prosecution and enforcement. Before then, our company had limited involvement with patents and the world of IP in general. Similarly, I had spent the majority of my legal career as a commercial litigator and, thus, I was much more comfortable reviewing contracts and court pleadings than patent applications and responses to office actions.

During that year, however, I became very familiar with the intricate, laborious, and often frustrating process related to patent applications. In the patent world, a process that started out as a seemingly simple and straightforward attempt to get appropriate protections for technological innovations quickly devolved into an exercise in defending, explaining, and differentiating the application from claims about wholly unrelated "prior art," as well as answering endless questions about inconsequential minutia only tangentially related to the substance of the application.

Thankfully, at the end of the process, our company's patent applications were granted, due in no small part to the work of our dedicated and able IP counsel. The process itself, however, left me frustrated. I felt like I had gone down more rabbit holes than a full-grown hare.

At any rate, for my 2014 annual meeting presentation, I was looking for a story about IP law that I could tell our company's management group. Ideally, the story would help me convey how tedious the world of IP law can be and illustrate for them the types of curious, unanticipated, and just plain weird issues that can arise when trying to establish property rights in ideas, concepts, and creations. That is when I came upon the picture of a smiling Naruto and the tail (sorry, I mean tale) of the Monkey Selfie.


Photo: The selfie that launched a thousand lawsuits. David Slater via Wikimedia Commons

The story begins at a wildlife reserve on the island of Sulawesi, Indonesia where, in 2011, a seven-year-old black crested macaque named Naruto lived.3 David Slater, a wildlife photographer, went to that island in 2011 to ply his trade. One day while at the reserve, Slater left his camera unattended and Naruto scooped it up. According to the Ninth Circuit Court's opinion, Naruto "allegedly" took several photographs of himself with Slater's camera that the Court referred to as the "Monkey Selfies."4

Slater, working with two commercial entities, published the Monkey Selfies in 2014 as part of a book that identified Slater and one of the entities as the owners of the copyright to the Monkey Selfies. Slater admits in the book several times that it was Naruto who actually took the photographs. Indeed, Slater describes Naruto as "[p]osing to take his own photograph, unworried by its own reflection, smiling. Surely a sign of self-awareness?"5

In 2015, People for the Ethical Treatment of Animals (PETA), and an individual doctor who had known and studied Naruto in Indonesia since Naruto's birth, filed a lawsuit as "Next Friends" on behalf of Naruto in the US District Court for the Northern District of California. The claim was filed against Slater, and the commercial entities involved in publishing the book, for copyright infringement. The complaint did not allege any facts concerning any history or relationship between Naruto and PETA.

Slater and the other defendants moved to dismiss the action under Federal Rules of Civil Procedure 12(b) (1) and (6), arguing that the complaint had not alleged facts sufficient to establish standing under Article III of the US Constitution or the Copyright Act. The District Court dismissed the action, holding that the plaintiffs had failed to allege facts sufficient to establish standing under the Copyright Act. The plaintiffs filed an appeal, but the doctor later withdrew from the process, leaving PETA as Naruto's only Next Friend before the Ninth Circuit Court of Appeals.

The Ninth Circuit Court began its analysis by examining the question of whether PETA could act as Naruto's Next Friend for purposes of establishing standing under the Copyright Act. The court noted that, in order to establish next friend status for a petitioner, the putative next friend must establish: (1) that the petitioner is "unable to litigate his own cause" due to mental incapacity, lack of access to the courts, or other similar disability; and (2) that the next friend has some "significant relationship" with and is truly dedicated to the best interests of the petitioner.6 The court skipped directly to the second required element.7 It noted that PETA failed to establish next friend status to Naruto since PETA had not claimed to have a relationship with Naruto that was any more significant than its relationship with any other animal.8

The court then noted that even if PETA could have offered sufficient facts to support a special relationship with Naruto, it appeared to have failed to live up to the title of "friend."9 After oral argument before the court, PETA and the appellees asked the court to dismiss Naruto's appeal and vacate the district court's judgment, claiming that PETA and the appellees had "settled" the case. PETA noted in its motion, however, that Naruto was not a party to the settlement and that his claims had not been settled. The court noted that, rather than acting as Naruto's friend, PETA had left him without an advocate and abandoned his substantive claims in what appeared to be an attempt to avoid the publication of an opinion by the court adverse to PETA's interests.10

Despite the request to dismiss the appeal and PETA's apparent abandonment of Naruto, the court forged onward, holding that absent express authorization from congress, it would not recognize the right of next friends to sue on behalf of animals. The scope of the next friend doctrine, the court reiterated, is no broader than that which is permitted by the applicable statute.

The court's analysis, however, did not stop there. An incompetent party's lack of a next friend, the court noted, did not destroy that party's standing if the incompetent party has a "case or controversy" under Article III of the Constitution.11 To hold otherwise, the court continued, would conflict with the court's 2004 Opinion in Cetacean Community v. Bush.12  In that matter, the court held that a group of cetaceans, without a next friend, could maintain Article III standing.13

In Cetacean Community, a claim was brought on behalf of a group of cetaceans alleging injuries as a result of the sonar systems of the US Navy.14 The suit was filed on behalf of the cetaceans by the "self-appointed attorney for all of the world's whales, porpoises, and dolphins."15 The court affirmed the district court's dismissal of the action for lack of statutory standing, but stated that "Article III does not compel the conclusion that a statutorily authorized suit in the name of an animal is not a 'case or controversy.'"16

Following its review of Cetacean Community, the court in Naruto concluded that Naruto had alleged facts sufficient to establish Article III standing since it was alleged that Naruto had suffered concrete and particularized economic harm because of copyright infringement.17 The question to be determined then, the court continued, was whether the Copyright Act provided Naruto with statutory standing.18

The court repeated the rule for determining statutory standing it had articulated in Cetacean Community:

"If an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing… [and if] … the statute does not so plainly state, then animals do not have statutory standing."19

The Copyright Act, the Court concluded, contains no such express statements and, therefore, Naruto lacked standing to sue under the Copyright Act.20

Before settling out of the case, PETA had argued in its brief to the court that the Copyright Act contemplated standing for parties other than flesh and blood human individuals since standing has been found to exist under the act for corporations and unincorporated entities.21

The court rejected this argument, noting that corporations and unincorporated associations have been recognized by the Supreme Court as "persons" having standing and that such entities are formed and owned by humans and "are not formed or owned by animals."22 Accordingly, the court affirmed the district court's conclusion that Naruto in particular, and animals in general, do not have statutory standing under the Copyright Act.23

Finally, the court granted the request of the appellees for an award of counsel fees against the appellants under the Copyright Act and remanded the matter to the district court for the determination of the appropriate amount.24 The court declined to speculate on how the settlement agreement mentioned by the some of the parties in the joint motion to dismiss and vacate might affect any fee award but noted, rather ominously, that Naruto was not a party to the settlement.25

In a separate opinion, Judge Smith agreed with the majority opinion's conclusion that Naruto's case must be dismissed, but opined that, because the court lacked jurisdiction, the appeal should have been dismissed and the district court's judgment on the merits vacated.26 Essentially, in the view of Judge Smith, the failure of PETA to satisfy the requirements for Next Friend status was jurisdictional and, without such status being demonstrated, no further analysis by the court was necessary or appropriate.27

In sum, Ninth Circuit Court of Appeals has concluded definitively that the Copyright Act, as it is currently written, does not provide statutory standing for animals to bring lawsuits for infringement. Absent some intense lobbying of Congress by some artistically or creatively inclined (and well-connected) monkeys, the language of the act is unlikely to change.

Thus, in the final analysis of the saga of the Monkey Selfies, Slater and his publishers walk away as the owners of the copyrights to the photos, PETA walks away with a settlement of some undisclosed nature that may include some share of the proceeds from use of the photos, and poor Naruto is left with nothing other than the possibility of being held liable for the legal fees of the prevailing parties. I bet Naruto is not smiling anymore. On the contrary, he is probably shaking his head and thinking to himself, "Humans…"


1 Naruto v. Slater, et al., 888 F. 3d 418 (9th Cir. 2018). Just so you know, a black crested macaque (Scientific name: Macaca nigra, Demarest 1822) is a species of monkey found in northeastern Sulawesi, Indonesia.
2 It might be said that it has now been conclusively determined that, at least for copyright claims in the Ninth Circuit, a quadruped has no standing.
3 The Ninth Circuit Court states that Naruto "may still live" in the reserve. Id. at 420. Which has me wondering whether the standing question becomes moot if Naruto is no longer alive. Unless, of course, his executor raised an estate on behalf of his … oh, wait …. never mind.
4 Id. Maybe it is just me, but there something mildly disconcerting about the thought of a court that is one step away from the United States Supreme Court having the occasion to issue an opinion that uses the phrase Monkey Selfies.
5 Id. I am not sure about Slater's grammar here. Perhaps Slater should have left a laptop unattended along with the camera and let Naruto take a shot at writing the copy as well. As they say, if you give 1,000 monkeys 1,000 typewriters and enough time, you might get Shakespeare.
6 Id. at 421.
7 The Court likely assumed that even if Naruto had the requisite mental capacity, he probably lacked access to the courts. I mean, Naruto making the flight arrangements from Indonesia, getting through security and on the plane, renting a car in San Francisco and getting a nice blue suit for his court appearance all seem rather unlikely.
8 Id. Perhaps PETA should have considered making Naruto a member of its board of directors. After all, they already had a good headshot of him to include on their website.
9 Id. at 421 n.3.
10 Id. One might say that PETA put this monkey out on a limb and then left him hanging.
11 Id. at 422.
12 386 F.3d 1169 (9th Cir. 2004).
13 Alright, I confess, I had to look up the definition of cetacean, which is, in part, "any of an order (Cetacea) of aquatic mostly marine mammals that includes whales, dolphins, porpoises, and related forms that have a torpedo-shaped nearly hairless body, paddle-shaped fore limbs, and no hind limbs… ." Merriam-Webster (11th Ed.). Thus, it would appear that the Court has concluded that whales, dolphins and porpoises have standing despite the fact that they haven't got one actual leg between them.
14 Id. at 1171.
15 Id. By the way, what a cool job title, huh? A few years back, when my kids were obsessed with The Little Mermaid and SpongeBob SquarePants, I could have been their hero if I had this job title. It'd make for a pretty cool business card too.
16 Id. at 1175.
17 Naruto, 888 F 3d at 425.
18 Id.
19 Id.
20 Id. at 426.
21 Id. at 426 n9. I guess this could be called the "corporate animal" argument.
22 Id.
23 Id.
24 Id.
25 Id. at 427 n12. In other words, PETA left the monkey holding the bag on counsel fees. Somebody likely is going to be out a lot of bananas!
26 Id. at 427.
27 Id.

About the Author

Joseph G FergusonJoseph G. Ferguson is general counsel for DBi Services. [email protected]

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