Monkey’s business?

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on June 21, 2018.


Cody Cooper

Cody Cooper is a Patent Attorney in the Intellectual Property Practice Group and represents individuals and companies in a wide range of intellectual property, patent, trademark and copyright matters. His practice also includes commercial litigation.

By Phillips Murrah Attorney Cody J. Cooper

In 2011, a nature photographer in an Indonesian nature reserve left his camera unattended in the forest. A 7-year-old crested macaque monkey named Naruto, perhaps in an effort to increase its Instagram followers, decided to take several selfies using the camera. The photographer then, in 2014, published the monkey’s photographs in a book for sale online.

People for the Ethical Treatment of Animals sued as next friend of Naruto seeking to enforce Naruto’s copyrights to the photographs and to recover profits from the sale of the book.

The question became whether Naruto had statutory standing to claim copyright infringement on what became referred to as Monkey Selfies. According to the 9th Circuit Court of Appeals, the answer is no.

Humans, unlike monkeys, have a constitutional right to protect their works and inventions under Clause 8 of Section 8 contained within Article I of the Constitution, and those rights are further set out in the United States Copyright Act. These rights include the right to use, distribute, sell, duplicate, display and create derivative works. These rights are most commonly associated with books, magazines, plays, paintings and photographs, but can also apply to things like architecture and even graffiti.

The 9th Circuit, in Naruto, et al., v. Slater, et al., No. 16-15469 (9th Cir. April 23, 2018) affirmed the trial court’s ruling that, despite the fact that the monkey had standing under Article III of the U.S. Constitution, Naruto did not have standing under the Copyright Act to bring the lawsuit. In other words, monkeys (or any other animal) cannot bring copyright infringement claims because the Copyright Act does not expressly authorize it. So, Naruto’s case was dismissed.

Citing Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) as precedent, the 9th Circuit Court of Appeals held that “if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.”

If Naruto teaches nothing else, it should be to remember that if you see your pet attempting to take a selfie with an abandoned camera, be sure to take the picture yourself, in case it becomes famous. Someone will be making money on it, and it might as well be you.

Cody J. Cooper is a patent attorney with the Oklahoma City law firm of Phillips Murrah.