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The Selfie Monkey Goes to the Ninth Circuit

Sarah Jeong

Sarah Jeong

Twist: There are two selfie monkeys.

This article originally appeared on Motherboard.

A selfie-taking monkey went to the 9th Circuit Court of Appeals on Wednesday, to fight for his right to own copyrights. Or rather, People for the Ethical Treatment of Animals (PETA) went to court on his behalf, it seems, to make a point about animal liberation. For those of you who haven't been following the case: Yes, this is just as weird as it sounds.

A monkey took a what?

Photographer David Slater left camera equipment lying around in an Indonesian rainforest, and a Sulawesi crested macaque took a photo of themselves. The "selfie" went viral on the internet. When the photo was uploaded to Wikimedia Commons, Slater complained. Wikimedia reviewed the photo and determined that Slater did not have a copyright in the photo, because the author is actually the monkey. But the monkey is an animal and animals can't own copyrights. Ergo, the photo is in the public domain.

Slater was not pleased.

So wait, Slater sued Wikimedia?

No. Slater is a nature photographer and not exactly rolling in dough. He grumbled to some news organizations and everyone had a good laugh at the story. The US Copyright Office even shaded Slater in their third Compendium—which is like the manual for what kind of copyrightable material they will register.

Image: The Compendium of US Copyright Office Practices, Third Edition, section 313.2

Wait, PETA sued Wikimedia?

No. PETA sued the photographer, David Slater.

Uh?

Slater self-published a book of wildlife photos that included the famous selfie. PETA sued Slater and the self-publishing book company, Blurb Inc, on behalf of the monkey.

Can just anyone sue on behalf of random animals?

No. PETA is suing as the "next friend" of Naruto, the crested macaque that is supposedly the monkey in the photo.

Under Rule 17(b) of the Federal Rules of Civil Procedure, a minor or a person who is incapable of acting on their own behalf can be represented in court by their "next friend"—someone who's very close to them, about as close as a guardian or a parent.

This is actually a big bone of contention in the case: whether PETA should be allowed to be Naruto's next friend at all.

In the lower court, PETA teamed up with primatologist Dr. Antje Engelhardt of the Macaca Nigra Project, who has known and studied Naruto since birth. Because Engelhardt is familiar with Naruto, she says she can identify him by face (and other primatologists I've reached out to agree that when you're familiar with the monkey in question, it's possible to identify them by face only).

But Engelhardt is no longer party to the lawsuit, having withdrawn in May 2016. The Macaca Nigra Project's Facebook page posted that Engelhardt "felt there was no mutual trust and understanding between her and PETA anymore since a while, and the situation had escalated to a point where she felt it was time for her to step out."

Image: YouTube screencap

Then, as of April 2017, Engelhardt is facing criminal charges for harassing PETA's general counsel Jeffrey Kerr, and trespassing on his property.

Anyways, uh, the point is that PETA's relationship to Naruto is extremely tenuous and the 9th Circuit Court of Appeals has taken note.

In court on Wednesday, a lawyer for Blurb threw shade at PETA by pointing out that prior news coverage (and PETA's own president, Ingrid Newkirk!) had identified the monkey in the selfie as a female. "We don't even know which monkey we're talking about. [PETA] has no power to say if they've even got the right monkey."

And with that, my friend, monkey trutherism made it to the 9th Circuit.

So does PETA have the right monkey?

As far as it's possible to know, probably? The scientists studying Naruto and his fellow monkeys are in the best position to know, and they say it's Naruto.

Interestingly enough, PETA's own lawsuit attached as an exhibit a full-body selfie of a juvenile male macaque (see page 22). Because I'm apparently monkey-face-blind, I assumed it was also of Naruto. And I guess, so did PETA. And the lawyers. And every judge at every step of this litigation. Because. It's a monkey.

But Antje Engelhardt has posted on Facebook that it's not Naruto at all, it's actually a different selfie from a monkey named Vlad.

There are two selfie monkeys. This…changes nothing.

Can monkeys own copyrights?

The US Copyright Office doesn't think so, but their opinion only counts for so much—they're an administrative agency, not Congress or the courts. There's two related, but ultimately separate questions here:

1. Can a monkey have standing to sue under the Copyright Act?

2. Can a monkey be an author under the Copyright Act?

With respect to the former, it would appear not—or at least not in the 9th Circuit. That's because the 9th Circuit is bound by its own precedent in Cetacean v. Bush, a case where a "self-appointed attorney for all of the world's whales, porpoises, and dolphins" sued the US government for endangering cetaceans in the ocean with its use of sonar systems. Cetacean stands for the principle that animals can't sue under a given statute unless Congress clearly intended for animals to be able to sue under that law.

Congress doesn't ever mention animal authors in the Copyright Act.

Since the statute uses the term "person," authorities like the Copyright Office have determined that "authors" do not include non-humans like monkeys, the ceaseless pounding of the ocean waves, or the Holy Spirit.

Image: The Compendium of US Copyright Office Practices, Third Edition, section 313.2

Why can't animals be persons though?

With respect to the Copyright Act, the rest of the statute's text makes that whole situation a little awkward?

On Wednesday, Judge Bea pointed out to PETA's attorney David Schwarz that the Copyright Act says that certain rights descend to a deceased author's widow/widower and children—whether legitimate or illegitimate. Carefully enunciating the monkey's name, he asked, "In the world of Naruto, is there legitimacy and illegitimacy?"

As counsel for PETA struggled to respond, Bea added, "Are Naruto's offspring children as defined in the statute?"

Later, Angela Dunning, the attorney for Blurb, Inc., pointed out that the statute refers to sending out written notice of a copyright lawsuit to anyone else who has or claims an interest in the same copyright. "It makes no sense to allow a monkey to enforce a copyright suit," she said. "But if you're going to do that, it's equally absurd to deny a monkey written notice of a right to intervene in a lawsuit. It's, uh—"

Judge Bea then interrupted. "Well Naruto wouldn't need a written notice. Maybe the other macaque monkeys in Indonesia would." The courtroom burst into laughter.

But that more or less gets to the absurdity of the whole thing. Under the US Constitution, the Copyright Act and other intellectual property laws are supposed to "promote the progress of science and the useful arts" by giving creators a property interest they can leverage into making money. What is a monkey going to do with licensing money? Monkeys don't have pockets, yo.

Also, monkeys can't grant licenses. If monkeys have copyright, the copyright would just sit there, inert, without anyone to grant the permission to use it. Because monkeys don't do paperwork. It's not really their thing.

What's going to happen now?

In general I like to refrain from predicting how judges will rule, but I feel pretty safe saying that the 9th Circuit will not allow a monkey to sue for copyright infringement.

But on what basis? Who knows. If they say it's because Cetacean v. Bush is binding, then PETA may very well file an en banc petition—asking the court to assemble a mega-panel of 11 judges that has the power to review its own decision and even overturn its own precedent.

If they say it's because PETA can't be a next friend to Naruto, then it's still possible for Slater to get sued again by a monkey. "A new suit may be brought by Naruto through a plaintiff properly pleaded," said Judge Bea on Wednesday. Andrew Dhuey, lawyer for David Slater, shrugged. "I guess that's my next case then."

He added, "I hope at this point PETA stops and leaves my client alone."

Dhuey is seeking attorney's fees against PETA. In layman's terms, he's arguing that this is a really dumb lawsuit and his client the broke photographer shouldn't have to pay for a lawyer just because PETA got a bee in its bonnet about monkey copyrights.

This whole case is bananas, why did they think this was a good idea?

Well, it's not really about monkey copyrights, actually. It's about Cetacean and about making precedent that will let PETA sue on behalf of animals in more serious matters. And in PETA's defense, the relevant case law is kind of not great. One of the cases that the judges mentioned during oral argument is a case about a "coalition of clergy, lawyers, and professors" trying to bring a lawsuit on behalf of Guantanamo detainees. It's not all monkeys and selfies here, there really are larger ramifications to the principles that are being hammered out.

Of course, the connection to copyright law is a wee bit tenuous. In oral argument, PETA's attorney said that the judges couldn't just assume that "persons" under the Copyright Act were human beings. At the time the Copyright Act was written, after all, marriage was only between a man and a woman, which limited who was allowed to be the "widow" or "widower" of a deceased author.

It was reminiscent of his argument at the district court back in February 2016, where PETA's attorney said that a ruling in favor of Naruto would be a progressive step forward, like women's liberation, or the emancipation of the slaves. He also said at that time that Naruto's supposed inability to own a copyright was analogous to an enslaved African-American's inability to own a patent prior to the adoption of the 14th Amendment.

Whether these analogies make a convincing case for animal rights or are actually wildly offensive, I will leave as an exercise to the reader.

But the point is that this isn't about monkeys owning copyrights, it's about monkeys being treated as people under the law.

Counterpoint: That's exactly why PETA's lawsuit is a no-go.

"This case is not about one monkey in Indonesia and his copyright. This case is brought as a means of highlighting a larger policy issue that is important to PETA… Animal liberation," said Dunning, the attorney for Blurb, Inc. "That is exactly what the Supreme Court said a next friend cannot do—use a real party in interest that cannot speak for itself to pursue its own agenda, no matter how noble that might be."

Meanwhile, "Naruto the monkey, thankfully, is safely ensconced in his reserve in Indonesia, blissfully unaware that all of this happening," Dunning said.

At least there's that, I guess.