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Monkey See, Monkey Do. Lawyer See, Lawyer Sue.

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One of the first rules I learned as a young litigator—painfully sometimes—was a pretty important one: Don’t waste the court’s time.  Don’t waste the court’s time with frivolous lawsuits or motions or appearances if you can help it. It’s a good rule to live by in any court, but certainly in those busy courts with congested dockets and overworked judges. I recall a few formative experiences early in my career when a judge would let me or the other attorney know in no uncertain terms that he/she didn’t appreciate having the court’s time wasted on matters that could either be resolved between the parties, or shouldn’t have been brought to court at all.

This is easier said than done at times given the litigious age in which we live, but it’s a rule I try to follow. Yes, lawyers usually get paid by the hour. And yes, filing lawsuits and all of the subsequent paperwork can increase those billable hours. And yes, it is (in theory) part of zealously representing your client. Some clients can even be pretty gung-ho about litigation so they can have their sacred and time-honored “day in court.” But I always tried to be a bit more practical in my approach when possible, given the rule enunciated above.

So when I read about this truly absurd copyright case brought by PETA (People for the Ethical Treatment of Animals), I couldn’t believe it. PETA, on a behalf of a macaque monkey in Indonesia named “Naruto,” actually filed suit in California (of course–where else?) after Naruto and some of his simian pals played with a camera that a photographer, David Slater, left on a tripod. Naruto took some interesting pictures. An example of one of Naruto’s selfies is below, which Slater later used in a book he published.

 Sure, Naruto’s cute. And clever, ingenious even. His PETA lawyer though? Not so much—at least from a legal   perspective. While looking at this picture, I couldn’t help but wonder if Naruto was imitating the photographer or if   PETA’s lawyer was imitating the monkey. You know, a curious and uncultivated creature who picks up a shiny   new object it doesn’t quite understand, points it at himself, smiles, and hopes that he doesn’t get hurt or look   stupid (or both).

PETA sued in federal district court on Naruto’s behalf claiming that the monkey was the true author of the pictures   since he took them, and not the photographer whose camera was used.  Intellectual property has its share of   interesting and important cases. (Who doesn’t like curling-up to read a good copyright or trademark decision?)   But this case isn’t one of them; not by a longshot. From a legal perspective, it was always a complete waste of   time and a waste of—as we say in this biz—“scarce judicial resources.” Especially in a state like California which   had over 39,000 federal court filings in 2017 (and over 8,500 in the Northern District alone, where PETA filed).

Judge William Orrick, the judge who presided over the suit, dismissed the case. The 9th Circuit finally (!)     weighed in and affirmed the dismissal on April 23rd, holding that Naruto had no standing to sue under the   Copyright Act because—wait for it—he’s an animal and, you know, animals can’t do that. In the opening paragraph on the Ninth Circuit’s opinion, which reads like it came straight from The Onion, the court writes:

We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.

It’s a long-winded and technical opinion (which only a lawyer can love) that takes longer than it should to arrive at this startlingly obvious conclusion, but the court does eventually get there—thankfully. And the opinion is unintentionally amusing at times precisely because the court takes itself so seriously.

Whether you support PETA or not, or love their (often) controversial tactics or not, that’s not the point. Whether you think monkeys should be able to own copyrights because they’re intelligent and thoughtful creatures isn’t the point either. Rather, it’s this: As attorneys, we’re officers of the court and have a duty to not initiate frivolous claims. There was no opportunity to establish new copyright law here and assert any meritorious arguments.

The Copyright Office had already taken the position in section 313.2 of its official “Compendium of U.S. Copyright Office Practices,” which is a persuasive authority and given deference by courts, that animals can’t hold a copyright: “To qualify as a work of ‘authorship’ a work must be created by a human being….The Office will not register works produced by nature, animals, or plants…. [or] purportedly created by divine or supernatural beings.” (So pictures taken by Hanuman, the Hindu monkey god? Definitely not copyrightable.) The Copyright Office also cited a copyright case from way back in 1884, Burrow-Giles Lithographic Co. v. Sarony, in support of this basic principle. While this fundamental concept isn’t expressly stated in the Copyright Act—any more than it’s stated the Act was written by people and not animals—it’s readily implied throughout that only humans can be authors and hold a copyright. Good old common sense compels this conclusion too, right?

The Copyright Act’s purpose is to implement Article 1, Section 8, Clause 8 of the Constitution which reads: “The Congress shall have the Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” And since the Constitution begins with three prominent words upon which our democracy is based, “We the People,” it’s obvious the Founding Fathers intended our fundamental laws that enshrine our rights to apply to people—i.e., humans—only.

PETA knew this, of course. From its perspective though, the suit was nothing more than a publicity stunt to show its donors that the organization thinks in grand terms (so even more money will flow in).  But using a lawsuit solely as a way to generate PR for your organization or social cause is improper and a misuse of a court’s resources. It’s sometimes also sanctionable under Rule 11 of the Federal Rules of Civil Procedure (and applicable state procedural rules as well) and under certain federal and/or state statutes. Some cases generate a great deal of PR as a by-product of their important and legitimate subject matter, but that’s premised upon having a meritorious lawsuit in the first place. PETA never had that and knew it. So did the Ninth Circuit. Perhaps that’s why the court awarded attorney’s fees to Slater for the appeal. The concurring opinion was even more blunt: “It is clear: PETA’s real motivation in this case was to advance its own interests, not Naruto’s…. PETA used Naruto as a ‘pawn to be manipulated on a chessboard larger than his own case.’

But little details like meritorious lawsuits didn’t stop PETA, especially after Judge Orrick’s dismissal. Jeff Kerr, the organization’s Chief Counsel, stated: “Despite this setback, we are celebrating that legal history was made in our unprecedented argument to a federal court that Naruto, a crested macaque monkey, should be the owner of property…rather than a mere piece of property himself.” Uh…no, not even close. Legal history wasn’t made; PETA lost. Had it won the case, then perhaps Kerr could make that claim. The argument was only “unprecedented” because no diligent and self-respecting lawyer would make it in a case so obviously devoid of merit.  It would be like claiming legal history was made in an unsuccessful paternity case because a lawyer made the unprecedented argument that the real father was from the Andromeda galaxy.

Like so many defendants who are on the receiving end of expensive and time-consuming and seemingly endless litigation, Slater settled with PETA and agreed to donate a portion of the book sales to charities that protect Indonesian macaques. Indeed, Slater stated last year that PETA’s lawsuit left him financially ruined and contemplating a career change such as becoming a tennis coach or dog-walker instead.  As he stated: “Everything I did to try and highlight the plight of the monkeys has backfired….I’ve had my life ruined.

Way to go PETA. Turn an effective and compassionate advocate for animals into an impotent pauper. And all over a case that never had a good faith basis to begin with. (It reminds of me of the equally meritless simian-related Donald Trump/Bill Maher lawsuit over a joke about Trump’s roots.) It was simply a shakedown of the photographer for no one’s benefit but PETA’s, which the Ninth Circuit noted: “PETA apparently obtained something from the settlement with Slater, although not anything that would necessarily go to Naruto.”  At least the court awarded Slater his attorney’s fees for the appeal, which will almost certainly be greater than any financial benefit the organization will ever derive from Slater’s book sales—not including all the fundraising PETA will do off the case, of course.

Needless to say, Slater’s settlement had absolutely nothing to do with the merits of the suit. How do I know? First, if his settlement agreement was like most others, there’s a provision which explicitly states this (and if not, there certainly should have been). Settlements often have more to do with expediency and costs, and Slater was an easy soft target. Second and most importantly: There was never any merit to PETA’s case. None. An animal can’t be an author and hold a copyright, and we knew that a long time ago. End of story.

It’s nice to see that even the notoriously progressive Ninth Circuit, in its own prolix way, came to this conclusion.  I can only hope that the district court sends a strong message to PETA when awarding Slater his appellate legal fees—and it would be even better if it awarded him ALL his fees and costs for this useless suit from its inception, which section 505 of the Copyright Act allows. (And you may be wondering: Does Slater own the copyright then? That’s in dispute too; organizations like Wikipedia argue that no one can own it since Naruto took the pictures, so it’s therefore in the public domain.)

Many years ago as a young technology lawyer, I read PETA’s memorable and amusing domain name lawsuit over PETA.org. An enterprising defendant with a wry sense of humor registered the PETA.org name as a parody for “People Eating Tasty Animals” and used it online to advocate in favor of eating meat, wearing leather and fur, and hunting. While he eventually (and sadly) lost the case—PETA failed to see the humor in it—it still gave me a good laugh since his use of the name was the hilariously blunt polar opposite of PETA’s stated principles.

But perhaps it’s time to revisit what PETA currently stands for given its meritless case against a now-broke and jaded photographer. How about “People Expending Time & Assets?” Or “Photographers are Easy To Abuse?” Or maybe something that really embodies PETA’s philosophy given its settlement with Slater, like “Petty Extortion Through Animals?” As an attorney though, I prefer more demonstrative designations like: “Please Explain This Asinine” case to those of us in the legal profession who are ethically bound to file only legitimate lawsuits and not waste a court’s time on something that’s “Pointless Except To Annoy.” Such frivolous cases are (wait for it)…pure monkey business.

© 2018 Daniel A. Batterman

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