The US Court of Appeals for the Ninth Circuit has recently ruled that an animal may have constitutional standing but lacks the necessary statutory standing to file law suits for copyright infringement. The judgment follows a law suit filed by the People for the Ethical Treatment of Animals (PETA) seeking confirmation that an animal could author a valid copyright work and, therefore, file a lawsuit for copyright infringement against a defendant third party.
In 2011, British nature photographer, David Slater, released various photographs of monkeys which had been taken in Indonesia. The process involved positioning a camera on a tripod. However, the monkeys were the ones that actually took the photographs through playing with the release button which Mr Slater had set up and left unattended. One of the shots showed a monkey peering into the lens, giving rise to the "monkey selfie".
The monkey selfie was subsequently uploaded to various third party websites on the basis that the author of the photograph is the original owner and, in this case, the author was a monkey. Therefore, it was argued that copyright could not subsist because the author was not human and the photograph simply formed part of those works freely available in the public domain.
When Mr Slater released a book containing copies of the monkey selfie in 2014, PETA filed a law suit requesting that the monkey, whom they named Naruto, be assigned the copyright for the photograph and that PETA be appointed to administer the relevant proceeds. Under US law, the "next friend" principle allows a person or group to sue in the name of another person who is unable to do so. Asides the long flight time and expensive air fare, Naruto was fairly unlikely to travel to the US to enforce his rights. Having been dismissed by the Northern District of California, PETA appealed to the Court of Appeals for the Ninth Circuit.
The Court held that Naruto had Article III standing to bring the law suit - as an animal, he had a case or controversy under the US Constitution allowing him to bring a law suit. This had been decided under earlier US case law relating to a law suit brought to protect the interests of dolphins, whales and porpoises.
However, Naruto lacked statutory standing to bring a copyright infringement law suit under the US Copyright Act. This is because the Act does not expressly authorise animals to file copyright law suits. Similarly, the wording of the statute persuaded the Court that no statutory standing was intended by the legislators. For instance, the ability of an author's children, widow or widower to inherit certain rights all imply humanity and thus exclude animals who do not marry or have heirs. Unfortunately for Naruto, his offspring will not be inheriting his monkey selfie.
The judgment should not come as a shock and would have likely been decided the same way under UK law. However, it does raise interesting questions and pushes the boundaries of concepts such as the subsistence of copyright through originality, authorship, ownership, implied assignment and licences, and infringement.
One interesting question is the protection Berne Convention signatory states should afford to copyright works which come to subsist in other signatory states. More specifically, would Indonesia have recognised Naruto's copyright in the monkey selfie?