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In Monkey Selfie Lawsuit, Lawyer in Chippendales Suit Is the Reasonable One

"Monkey see, monkey sue is not good law – at least not in the Ninth Circuit."

by Sarah Jeong
Nov 11 2015, 9:50pm

One of the monkey selfies taken with David Slater's camera. Photo: David Slater (or Naruto?)/Wikimedia Commons

In September, PETA sued wildlife photographer David Slater and the self-publishing book company Blurb, Inc., for infringing the copyright of Naruto, a six-year-old Sulawesi crested macaque.

Naruto is alleged to have taken a selfie with Slater's camera in 2011, and PETA believes that the monkey, not Slater, is entitled to the photo's copyright, and to any money that Slater made through his self-published book. (PETA, of course, would be administering where the money actually goes. The organization told me that it would be used "solely for the protection of Naruto, his family, his community, and habitat.")

Somehow, the story managed to get sillier.

On November 6th, both Slater and Blurb, Inc. filed motions to dismiss PETA's suit. The motion to dismiss from Blurb, Inc. is about as funny as a filing in a monkey copyright lawsuit can be expected to be.

But the motion to dismiss from David Slater is even better.

It starts off strong:

A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey's claimed copyright. What seems like the setup for a punchline is really happening. It should not be happening.

It moves in for the kill:

Monkey see, monkey sue is not good law – at least not in the Ninth Circuit.

In most motions to dismiss, the next section is usually titled "Relevant Facts." This time, the "s" is missing, making it "Relevant Fact." This is because:

I... I guess I can't argue with that?

The Slater Motion to Dismiss caps out at two pages, plus a cover sheet and a single page proposed order. It would have been even shorter if the lawyer had left out all the jabs at PETA, such as:

Indeed, imagining a monkey as the copyright "author" in Title 17 of the United States Code is a farcical journey Dr. Seuss might have written.

So who is the legal hero who is going ape on PETA?

His name is Andrew Dhuey, and his LinkedIn looks like this:

"Why would you hire a lawyer who uses a photo of himself in a Chippendales costume on LinkedIn?" he writes, in his LinkedIn summary. "Why not? Hear me out on this."

According to Dhuey, he mostly does "petition-stage appellate work," either at federal courts of appeals, or at the Supreme Court. "Often my role is to push the boundaries of existing law," he writes.

But clearly, a monkey having copyright is a bridge too far, even for a lawyer wearing a Chippendales costume on LinkedIn.

Blurb, Inc. is the other defendant in the case. Its service "allows users to create and self-publish their own beautiful, bookstore-quality books"—resulting in the self-published Wildlife Personalities by David Slater. Blurb did not spring for a lawyer in a Chippendales costume, and instead hired big law firm Cooley LLP, which wrote up a pretty standard 16-page motion to dismiss. Well, maybe standard is not the right word when you're talking about a lawsuit over a monkey selfie, but Andrew Dhuey set some high expectations here.

On page 11, the lawyers for Blurb question whether PETA even has the right monkey. Attention, everyone, monkey truthers have made it into the official court docket.

From Blurb, Inc.'s Motion to Dismiss

Blurb's motion to dismiss points out that PETA President Ingrid Newkirk identified the monkey as female back in 2014. Naruto, the plaintiff in this lawsuit, is male. For what it's worth, PETA has told me that Newkirk's op-ed was written "several months before we learned that the macaque in the monkey selfies is Naruto, a male born in November 2008 who has been known to the researchers studying him since his birth."

A hearing date has been set for January 6, 2016. I don't think the monkey is going to come to court, but I'm planning on being there anyways.