Back in September, PETA brought a copyright lawsuit on behalf of a viral-selfie-taking macaque. Although the judge dismissed the suit in a written opinion released Friday, the organization has leave to amend—meaning that if it wants, PETA can try yet again to get damages from nature photographer David Slater and the self-publishing company Blurb, Inc.
Slater has had his own troubles with the monkey over the years. Wikimedia has refused to take down what he views as his photograph, concluding that the selfie is public domain because it was taken by a non-human. However, he only went to court over it after the monkey lawyered up.
PETA argued that non-humans like Naruto, a Sulawesi crested macaque, are authors under the Copyright Act, and therefore they can sue for copyright infringement. Sulawesi crested macaques are critically endangered, and PETA says it would use the proceeds from licensing the photograph to benefit Naruto, his family, and his habitat.
The only problem is that in the 9th Circuit—an appellate jurisdiction that includes the Northern District of California, where PETA has brought the lawsuit—follows Cetacean v. Bush, which says that animals cannot be plaintiffs in court unless the law cited specifically says so.
In Cetacean, a "self-appointed attorney for all of the world's whales, porpoises, and dolphins" sued under the Endangered Species Act, the Marine Mammal Protection Act, and the National Environmental Policy Act. The lawsuit was dismissed, since "if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly."
Following the same logic, Judge William H. Orrick handed down a written opinion last Friday, granting a motion to dismiss the suit.
In the court hearing on January 6, the judge may have been struggling to hide his amusement. He began the proceedings by thanking PETA for its filings, saying, "I thought your brief was…. interesting." Right off the bat, he declared his intention to dismiss the complaint, but, "I'm very happy to hear any argument you want to make."
The attorney for Naruto, David A. Schwarz suggested that a ruling in favor of the macaque would be a progressive step forward similar to women's emancipation, or the liberation of the slaves. He analogized Naruto's supposed inability to own a copyright to an enslaved African-American's inability to own a patent prior to the adoption of the 14th Amendment.
After Schwarz spoke at great length, Andrew Dhuey, the attorney for photographer David Slater, stepped in. "It's a question of whether a monkey has statutory standing to sue, which it does not," he said sternly. "We're engaging in somewhat of a Socratic debate and that is not appropriate."
The judge ultimately dismissed the lawsuit, but gave PETA leave to file an amended complaint—meaning that Naruto the macaque will have a second shot at claiming his copyright.
But it's unclear how PETA would get around the judge's initial ruling. "[T]here is no mention of animals anywhere in the Copyright Act," the judge wrote. He also noted that the self-appointed representatives of the monkey "have not cited, and I have not found, a single case that expands the definition of authors to include animals."
PETA has not yet decided whether it will file an amended complaint. When asked for comment, PETA general counsel Jeffrey Kerr said, "My mentor told me that in social-cause cases, 'First, you lose, you lose, you lose. Then you win.' And we are treading that path for animal rights in the hope that we may lose, lose, lose, but that we will one day win."