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PETA Has Lost Its Monkey's 'Next Friend' In Its Crazy Copyright Case

from the the-monkey's-uncle-is-missing dept

Tue, Aug 30th 2016 10:44am — Mike Masnick

The ongoing saga that is the monkey selfie lawsuit has continued to move forward, with the lawyers for photographer David Slater filing their brief in response to PETA's. As you probably recall, PETA had teamed up with a primatologist named Antje Engelhardt claiming to be "next friends" for the Indonesian macaque monkey named Naruto, who is alleged to have taken the following selfie with David Slater's camera.

Slater has claimed to hold the copyright on the photo for a long time, though he's wrong. But PETA is much more wrong in arguing that it can step in and claim both (a) that there is a copyright on the image and (b) that the monkey holds it. Slater is just wrong about the copyright existing.

Either way, the PETA case was easily tossed out of the district court based on the fact that monkeys can't get copyrights under US law (US laws don't apply to animals unless specifically stated -- this is why farms aren't legally considered murder camps, no matter what some vegetarians might say). And, of course, PETA appealed. And we expect it will go about as well as the district court case. But it may go even worse.

That's because in the reply, Slater's lawyer points out that not only can a monkey not hold a copyright, but also that PETA has even less standing than before, because the primatologist, Antje Engelhardt, has decided she's no longer a next friend of our buddy Naruto, the smiling monkey.

On appeal, the crazy got crazier. Dr. Engelhardt withdrew from the case. That leaves PETA, which does not allege any relationship with the monkey, as the monkey’s sole next friend.

[....]

Two putative next friends filed this action: PETA and Dr. Engelhardt, a primatologist who alleged that she has “known, monitored, and studied Naruto since his birth.” ER 23. It may well be that the relationship with Naruto Dr. Engelhardt alleged is “significant” under Coalition of Clergy v. Bush. However, Dr. Engelhardt moved to withdraw from the case, informing the Court that she “will not continue as a next friend to Appellant in this proceeding.” This Court granted Dr. Engelhardt’s motion, thus leaving PETA as Naruto’s lone putative next friend.

This is a fairly big problem for PETA and its big time (seriously) lawyers from the (previously respectable) law firm of Irell & Manella.

Unlike Dr. Engelhardt, PETA did not allege any relationship with Naruto, much less a significant one. That is a problem on appeal. PETA is now in a position very much like the ballot initiative defenders in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013): a party necessary for standing at the district court is not participating in the appeal. “[S]tanding must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Id. at 2661 (internal quotation marks and citation omitted).

All of the Naruto relationship allegations in the Complaint concern Dr. Engelhardt; none involve PETA.... PETA alleges no connection to Naruto, an Indonesian monkey who lives roughly 10,000 miles from PETA’s headquarters in Virginia.

In other words, even if Engelhardt had standing, PETA doesn't.

The filing also contains its fair share of monkey jokes, so we'll just end this post with a few of those:

Under controlling Ninth Circuit precedent, monkey see, monkey sue is not good law under any Act of Congress unless the legislative text plainly grants non-human animals standing to sue.

[....]

The only pertinent fact in this case is that Naruto is a monkey suing for copyright infringement.

Either way, one hopes that the court makes quick work of this case as well, but it is 9th Circuit, which perhaps deserves copyright on its... creative interpretations of copyright law at times. Hopefully this isn't one of those cases.

Answer-Brief-on-Appeal-Naruto (PDF)Answer-Brief-on-Appeal-Naruto (Text)

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Filed Under: animals, antje engelhardt, copyright, david slater, monkey, monkey selfie, public domain, standing
Companies: irell & manella, peta

24 Comments

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Anonymous Coward, 30 Aug 2016 @ 11:03am

At least the monkey is happy
Judging from this pic, I can only assume the monkey is happy regardless of the outcome of this case.
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Ninja (profile), 30 Aug 2016 @ 11:04am

Poor Naruto. No copyrights to grant him a good afterlife, no friends, no nothing. How will future monkeys be encouraged to make more selfies without copyright? Without friends?

Oh yes, we just need to leave a camera lying around.
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Anonymous Coward, 30 Aug 2016 @ 11:07am

Without due copyright protection upon his selfie, what incentive does Naruto have to create more selfies?
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Anonymous Coward, 30 Aug 2016 @ 11:21am

Too bad
What will result is a non-ruling based on a technicality. I would rather have had the whole thing declared insane, as opposed to simply irrelevant.
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rw (profile), 30 Aug 2016 @ 11:38am

Maybe he should sue for publicity rights, after all this is the 9th Circuit.
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I.T. Guy, 30 Aug 2016 @ 11:59am

Too much monkey business going on with copyright these days.

What? Someone had to.
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Stan (profile), 30 Aug 2016 @ 12:10pm

PETA means...
People Exhibiting Terrible Attitudes
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Anonymous Coward, 30 Aug 2016 @ 12:21pm

Re: At least the monkey is happy
When any primate, except man, smiles like that, they are showing their teeth, as in look at how big they are to bite you with.
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JoeCool (profile), 30 Aug 2016 @ 12:30pm

Re: PETA means...
People Employing Terrible Lawyers
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JoeCool (profile), 30 Aug 2016 @ 12:31pm

Re: Re: PETA means...
Durp - People Employing Terrible Attorneys

Still need that EDIT button!
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Norahc (profile), 30 Aug 2016 @ 1:14pm

Poor Mike
Poor Mike Masnick...mashing out more and more on the macaque monkey do, macaque monkey sue marathon mess.
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Anon, 30 Aug 2016 @ 1:38pm

Decide:
One of these took a picture that's internationally famous.

One of these brought a case to court that was laughably impossible to win and didn't have a leg to stand on, let alone standing to bring the case.

Who's the monkey?
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Roger Strong (profile), 30 Aug 2016 @ 1:46pm

Re:
Politics.

Trump will soon need yet another set of campaign managers and advisors who can fling feces without claiming that Obama invaded Afghanistan. Someone who won't try to explain Trump's flip-flops with "He hasn’t changed his position on immigration, he has changed the 'words' that he is saying."

Unable to speak at all while still being able to shout down others on a cable news panel, Naruto would be the ideal candidate. Naruto has the special combination of publicity and legal experience that Trump needs.
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bobmorning (profile), 30 Aug 2016 @ 2:04pm

Give it to Kozinski in the 9th, this ought to be fun to watch him make short work of this non-sense.

I love reading his decisions and commentary.
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bob, 30 Aug 2016 @ 2:14pm

Re: Re: PETA means...
People Eating Tasty Animals.
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bob, 30 Aug 2016 @ 2:17pm

Everyone assumes this monkey has friends. If he really did, then he would have included them in the picture.
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Anonymous Coward, 30 Aug 2016 @ 2:29pm

This is a disaster for human culture! Since, after all, we are all descended from monkeys, ergo, all precedents applying to any other primates must also, ipso facto, apply to professional stock photographers. If this picture is not afforded the strongest protection of the most draconian law--and all unlicenced references to it prosecuted as terrorist acts by the FBI, the NSA, and the Galactic Patrol--civilization as we know it will end, and rodents will take over the earth.

Indeed, some say this has already happened.
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Anonymous Coward, 30 Aug 2016 @ 6:46pm

Re: At least the monkey is happy
Why is everyone assuming the monkey took a picture. It's obvious that it thought the camera was a mirror and it's checking for spinage caught in it's teeth before chatting up the lovely lady monkey. Look at those raised eyebrows and the suave expression! The name is Bond. Monkey Bond.
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Anonymous Coward, 30 Aug 2016 @ 7:25pm

If the monkey won...
If Naruto won in court and was granted the copyright of the photo, who ends up with the proceeds? What would a monkey buy with all that money?
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Anonymous Coward, 30 Aug 2016 @ 9:34pm

Re: Re: At least the monkey is happy
The monkey took a selfie to send to his girlfriend. and yes, he is happy, he's about to go on a hot date. So the first poster is correct indeed.
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Anonymous Coward, 31 Aug 2016 @ 6:47am

Re: At least the monkey is happy
Which monkey are you referring to, the one in the advertisement who is smiling or the one above it?
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Anonymous Coward, 31 Aug 2016 @ 1:11pm

Re:
Suddenly I understand why so many people take selfies.
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Kronomex, 31 Aug 2016 @ 5:50pm

Why didn't PETA hire Prenda?
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Norahc (profile), 1 Sep 2016 @ 5:42am

Response to: Kronomex on Aug 31st, 2016 @ 5:50pm
Because next week Getty Images is going to claim the copyright on the picture and send out licensing demand letters.
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