Monkey See, Monkey Sue: Ninth Circuit Finds Naruto Cannot Sue Under Copyright Act

Last week, the Ninth Circuit Court of Appeals panel affirmed dismissal of copyright infringement claims brought on behalf of a macaque monkey, Naruto, against a wildlife photographer. The Court found that Naruto had Constitutional standing to file suit, but that he could not maintain an action under the Copyright Act. Naruto v. Slater, No. 16-15469.

In 2011, Naruto, then a seven-year-old crested macaque living in Indonesia, took several pictures of himself with a camera that had been left unattended by wildlife photographer David Slater.  Slater subsequently published these “monkey selfies” in a book.  In 2015, PETA filed a complaint on Naruto’s behalf alleging copyright infringement, which a district court in California dismissed.

Affirming dismissal, the Ninth Circuit found that PETA did not have standing as “next-friend” of Naruto because animals cannot be represented by “next friends” absent express statutory authorization and PETA had failed to allege that it had a significant relationship with Naruto.  The Court also criticized PETA for seeking dismissal of Naruto’s appeal after PETA entered into a settlement agreement with the photographer following oral argument in the case.  Since the settlement did not include Naruto as a party, the settlement and subsequent motion gave the appearance that Naruto was being used for PETA’s institutional interests, which undermined PETA’s attempt to establish itself as Naruto’s next friend.

Relying on a prior decision of the Ninth Circuit from 2004, Cetacean Community v. Bush however, the court held that Naruto had Constitutional standing on his own to sue.  In Catacean Community, the Ninth Circuit found that the world’s whales, dolphins, and porpoises, had standing to sue through their self-appointed attorney.  The panel in Naruto’s case criticized that earlier decision as “wrongly decided,” but ruled that they were bound by it until the full Ninth Circuit or the Supreme Court revisited it.

Ultimately, however, the Court found that the language of the Copyright Act did not authorize animals to file copyright infringement suits.  The Court emphasized that a lawsuit by an animal is only allowable if the statute specifically permits it -  a rule meant to prevent monkey business.

For more information on animal law, intellectual property, constitutional or statutory standing, or the implications of Naruto, please contact Kathleen Barnett Einhorn, Esq., Director of the firm’s Complex Commercial Litigation Group at keinhorn@genovaburns.com, or Jennifer Borek, Esq., a Partner in the Complex Commercial Litigation Group at jborek@genovaburns.com.