The Selfie Monkey Strikes Back: Lawyers Claim Of Course Monkeys Can Sue For Copyright

The monkey selfie story is the gift that keeps on giving. When we last left the monkey, who PETA insists goes by the name “Naruto,” the website Blurb and the didn’t-take-the-monkey-photos-photographer David Slater had both pointed out to the court the simple fact that monkeys can’t sue for copyright infringement and the lawsuit that PETA filed on behalf of the monkey was completely ridiculous. If you don’t recall, these monkey selfies are unquestionably in the public domain, even if Slater still argues that he holds the copyright on them. He didn’t take the photos, as his own statements indicate, and thus the photos are in the public domain (longer explanation at that link). But the idea that the monkey might own the copyright is something that Slater and I completely agree on: it’s not even in the realm of possibility. Until PETA sued it was only in the realm of satire.

Anyway, PETA’s lawyers at the (formerly) prestigious law firm of Irell & Manella have struck back with a filing defending the lawsuit, which they insist is, like, totally real and legit. Which it’s not. That Irell & Manella would let itself get played by PETA for a stupid publicity stunt that serves no purpose other than to waste the court’s time, really speaks poorly of that firm. Their argument is based on the silly idea that “well, someone must own it, and thus, it should be the monkey.” This is wrong on both points, but we’ll get there. First, the argument:

This case presents an issue of first impression: Whether human authorship is required for protection of works under the Copyright Act. There is no dispute here that Naruto took the photographs spontaneously and without human assistance. In every practical (and definitional) sense, he is the “author” of the works. Defendants argue that animals have no standing under the statute—that they cannot be “authors.” Yet none of the Defendants suggests that they have any entitlement to ownership of the works. Defendant Blurb implies that any work created by an animal falls into the public domain; Defendant Slater does not argue here that he owns the copyright. These positions are both inconsistent with other statements made by Defendants and wholly inconsistent with the premise of the Copyright Act—every copyright must have an author. And both Blurb and Mr. Slater ignore the fundamental question posed here: Does the Copyright Act permit Plaintiff’s ownership of the works or give him standing to assert claims under that statute? The answer to both questions is “Yes.”

This is wrong on multiple levels. First, even though I totally disagree with him, Slater claims that he holds the copyright. He’s also been creatively revising his story since it first came out to suggest that he played a larger role than originally implied in getting the monkey (“Naruto” or not) to take the photo. Second, this belief that (a) there must be a copyright and (b) someone must hold it is wrong. As we’ve discussed, this is a bit of dangerous thinking, that every bit of cultural output must be “owned” via copyright law. But that’s not what the law says at all. It is entirely possible for new works to be created that are in the public domain, and this is clearly one of them.

As for the idea that a monkey can hold the copyright, that has long been debunked. We’ve said it a bunch of times already, but the Copyright Office itself has made it clear that a work must be created by a human being to be eligible for copyright. David Schwartz, the Irell & Manella lawyer who really is a lawyer, who actually graduated from Duke Law School and clerked for Judge Kozinski, then doubles down on the crazy by arguing that since copyright law was intended to benefit the public by creating incentives for creativity, it’s obvious that they meant to cover monkeys.

The text of the statute itself does not compel the conclusion that authorship may be vested exclusively in humans. To the contrary: Since enacting the Copyright Act of 1790, Congress and the Supreme Court have instructed that the copyright laws should be interpreted liberally in order to safeguard the “general benefits derived by the public” from works of authorship…. Copyright protection advances that goal by allowing authors to “disclose” their works without losing control of them.

Think about this for a second. He’s trying to claim, first, that Naruto the monkey (who many people dispute even took the photo), not only put such creative thought into the “authorship” of the photo, but also that the monkey requires the exclusivity provided by copyright to properly incentivize the production of the photograph.

Just what kind of monkey crap is that? Copyright law is an incentive to create and then, yes, to distribute. But the monkey doesn’t need such an incentive. The monkey was not and is not thinking “gee, if only I could protect this image, well, that’s a reason to take this photograph.” It’s a monkey.

Every copyright must have an “author.” If there is no author, there is no copyright

Yes, and the courts have long recognized that an “author” is a human. Thus, you’ve just made the case that there is no copyright here. Because there isn’t. The photograph is in the public domain.

A key part of PETA’s argument that copyright holders don’t need to be people is… that corporations can hold copyrights:

In allowing both corporate authors and anonymous authors, the Copyright Act stands in stark contrast to how Congress decided to provide for other intellectual property rights, such as patents. Under the Patent Act, the “inventor”—i.e., patent law’s equivalent of a copyright “author”—specifically excludes corporations and other non-natural persons…. Thus, if Congress wanted to exclude non-human authorship rights, it knew how to do so and would have enacted parallel features into the Copyright Act.

It seems unlikely that this argument will go very far.

Finally, the lawyer seems to argue with a straight face that the public domain is antithetical to the concept of copyright by saying it’s impossible to imagine that Congress wanted to support the public domain when it created copyright law. Really.

Without an author, there can be no “fixation,” no “work of authorship,” and thus, no copyright…. Thus, if an animal cannot be an “author,” then any work which “owes its origin” to an animal will not have copyright protection.

Such a result is antithetical to the public interest, and hence, the intent of the drafters of the Copyright Act.

Um, no. That’s not antithetical to the public interest at all, unless you believe that the drafters of the Copyright Act didn’t believe in the public domain, which they clearly do. The motion was written by someone who appears not to know the first thing about actual copyright law and the concept of the public domain. Again, this is a total embarrassment for Irell & Manella — a firm that is engaged in lots of big copyright cases. Everyone knows that PETA plays stupid publicity stunts. But for an actual high profile law firm to make arguments like these is an embarrassment.

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