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Hey, remember that monkey selfie copyright drama a few years ago? Get this – It's just hit the US appeals courts

And, surprise, surprise, everyone's still baffled

By Kieren McCarthy, 12 Jul 2017

Analysis Remember that selfie of the grinning monkey way back in 2014?

It was taken by an Indonesian crested macaque named Naruto using the camera of wildlife photographer David Slater. And it is at the heart of a long-running copyright case that's now ended up before the Ninth Circuit Appeals Court in San Francisco.

Why? Because it's not entirely clear who owns the copyright. Is it David Slater – who flew to Indonesia, set up the shot and included the resulting picture in a book of his wildlife images? Or is it Naruto, who actually pressed the button on the camera (although perhaps unwittingly)?

According to US copyright law, the person who took the picture is the copyright owner – but then there is the small matter that Naruto is also a monkey. There's nothing in copyright law that says a monkey, or any animal, can't hold copyright, but then there's nothing that says they can, either.

In that sense, the case could decide whether someone other than a human can hold copyright – something that could have significant implications in future as computers use artificial intelligence to capture and create images.

But before we get there, the bigger question is: how did Naruto hear about Slater's book and then hire a lawyer to sue him in California court over breach of copyright? And the answer, of course, is that he didn't.

What happened was that animal rights organization People for the Ethical Treatment of Animals (PETA) sued on Naruto's behalf. Which is patently ridiculous... until, that is, PETA persuaded a woman named Antje Engelhardt to act as Naruto's representative.

Friend or foe?

Dr Engelhardt studies macaques and has known Naruto since he was born. She joined the case as his "next friend" to give the case some chance of progressing, using a status typically used to provide legal standing for children or people with disabilities. PETA seemingly promised her that if Naruto won the case, he could receive significant royalties – which she hoped would be used to assist the monkeys from the real risk of extinction.

But somewhere along the line and before the appeals court hearing this week in San Francisco, Dr Engelhardt withdrew from the case. It's not entirely clear why, but in a statement explaining her withdrawal she said: "I have always felt that one of my duties as Naruto's Next Friend was to ensure that he/his case does not get exploited for other purposes than getting him the copyright."

Things got even weirder when Engelhardt texted PETA's general counsel Jeff Kerr to tell him she was heading to San Francisco and would drop by his house to have a conversation about what had happened – and Kerr responded by calling the cops on her. She was arrested.

All of which led up to the appeal courts hearing on Wednesday, where one of the three judges right off the bat asked PETA lawyer David Schwartz why PETA felt it has any legal right to represent Naruto at all.

He cited a case stemming from Guantanamo, no less, in which clergymen attempted to act as representatives for those held at the US military base. In the case, the courts decided that "no matter how committed and dedicated" they were, they had to show a "significant relationship" with the plaintiffs to act as their representatives.

The judge said that Engelhardt might have met that standard, but that since she was off the case "for reasons unknown," what significant relationship did PETA have to the monkey living in Indonesia?

Schwartz tried to sidestep the question altogether by arguing that it was in the court's power to ignore that aspect of things and focus instead on whether Naruto had a case, and then deal with a representative later.

Dr Suelittle

Later on in the hearing, the judges asked PETA whether it felt it was entitled to represent any animal in the world whose picture had been taken. Schwartz demurred again, arguing that it would have to be done on a case-by-case basis.

But if it started out badly for PETA, worse was to come when the judges asked Schwartz to explain exactly what injury had been caused to Naruto by the photo being published?

"There's no injury caused by an infringement of the copyright act," Judge Smith noted. "And there's no case that suggests there is."

As Schwartz tried to argue around his point, the judge ended up bellowing at him: "What is the injury? What is the injury?" before pointing out that Naruto – the Indonesian monkey – has "no way to hold money, can suffer no losses to his reputation, there's not even an allegation that copyright could have benefited Naruto."

PETA's Schwartz was left arguing that he didn't have to allege injury at this stage in the legal process.

Let's be honest: any case involving a monkey arguing for royalties on a selfie was going to get a bit weird. But this being the legal system, it was taken entirely seriously, with debates about the language of the Constitution and the Copyright Act and the use of "author" rather than "person."

It started getting a little peculiar in a debate over whether Naruto's "children and grandchildren" should be handed his copyright, were it to be awarded. Then there was the question about whether Naruto was obliged to send letters to the other monkeys in his group letting them know about the court case, since some of them had also been snapped in his pictures.

Blind to the argument

But PETA has an answer for that: because this action is between private parties and does not involve the federal government, the language that specifically talks about human beings does not apply. And it used a case from the Ray Charles Foundation – you know, the author of Hit the Road, Jack and I Got a Woman – to make its point.

To say this left David Slater's attorney baffled would be an understatement. Asked for counter arguments to the Ray Charles case, Andrew Dhuey just shook his head. "I did my best to understand it," he confessed. "But I don't see what Ray Charles has to do with anything..." he trailed off.

Dhuey instead complained that the case was wasting judicial resources in having to "keep arguing what are really obvious principles" – namely that animals should not have copyright protections.

Dhuey's colleague made the same point: that copyright is a "purely human construct," the purpose of which was "to make sure works are disseminated with a limited monopoly so the owner can benefit financially."

But, she pointed out, "Naruto can't benefit financially – he's a monkey," adding, "PETA would like to benefit..."

As for PETA claiming Next Friend status, she argued that aside from the fact that it has no relationship to Naruto (Schwartz says PETA has sent people to Indonesia to go see the monkeys), it has undermined any effort to gain that status by using the case to "pursue its own agenda" rather than act on behalf on Naruto. "The Supreme Court said a Next Friend can't do that – pursue their own agenda – no matter how noble," she noted.

She also argued that the only way the picture came to light in the first place was because her client – a professional wildlife photographer – took his camera to the other side of the world, developed the film and put the pictures out there.

Is "ooh-ooh" a yes, or a no?

Even if the court decides that a monkey does have standing, she noted, how can that monkey grant a license for use or grant permission for his image being used?

You can only imagine the flood of lawsuits that would land on David Attenborough for his willful infringement of thousands of animals' privacy over the course of his career.

But back to the issue of whether animals can hold a copyright. PETA points out that corporations are not people, yet they can hold copyright. To which the opposing lawyers pointed out that it was specifically decided by the Supreme Court. So far, there has been no Supreme Court decision that animals are people.

Anyway, by this stage, PETA's lawyer knew he had lost the argument resoundingly and so started arguing to be given leave to file an amended complaint, rather than have it vacated with prejudice – something that the judge explicitly threatened to do.

The judge even asked Slater's lawyer, Dhuey, what result he would like to see. He said a decision that animals have no standing to sue over the copyright act and that this case was an inappropriate use of federal courts (which would see his client get back his legal costs).

The judge warned: "If we vacate the judgment a new suit may be brought by Naruto through a Next Friend properly pleaded."

In other words, if PETA can dig out someone else living at the monkey sanctuary in Indonesia who is willing to act on Naruto's behalf, Slater could be sued all over again.

That seems a little unlikely given Dr Engelhardt's experience, but even so, it would leave the issue of whether a monkey can hold copyright undecided. Dhuey presumably sees that as someone else's future problem and simply wants his client taken off this crazy case rather than face a possible appeal to the Supreme Court.

"What I would hope is that PETA stops and leaves my client alone," he moaned.

Meanwhile, in Indonesia, Naruto the crested macaque doesn't give a single, solitary fuck. ®

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