Case 3:15-cv-04324-WHO Document 45 Filed 01/28/16 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`NARUTO, et al.,
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`Plaintiffs,
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`v.
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`DAVID JOHN SLATER, et al.,
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`Defendants.
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`Case No. 15-cv-04324-WHO
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`ORDER GRANTING MOTIONS TO
`DISMISS
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`Re: Dkt. Nos. 24, 28
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`INTRODUCTION
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`This case arises out of allegations that Naruto, a six-year-old crested macaque, took
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`multiple photographs of himself (the “Monkey Selfies”) using defendant David John Slater’s
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`camera. The complaint, filed by the People for the Ethical Treatment of Animals (“PETA”) and
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`Antje Engelhardt as “Next Friends,” alleges that defendants Slater, Blurb, Inc. (the “publisher” of
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`a book by Slater containing the Monkey Selfies), and Wildlife Personalities, Ltd. (a United
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`Kingdom company that, along with Slater, “falsely” claims authorship of the Monkey Selfies)
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`violated Naruto’s copyright by displaying, advertising, and selling copies of the Monkey Selfies.
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`On January 6, 2016, I heard argument on the defendants’ motions to dismiss that assert that
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`Naruto does not have standing and cannot state a claim under the Copyright Act. Because the
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`Copyright Act does not confer standing upon animals like Naruto, defendants’ motions to dismiss
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`are GRANTED.1
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`1 Blurb and Next Friends request judicial notice of exhibits containing content from internet
`webpages. Dkt. Nos. 26, 33. Because I do not rely on these materials in granting defendants’
`motions, and even if I had it would not change my analysis, the requests are DENIED as moot.
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`Case 3:15-cv-04324-WHO Document 45 Filed 01/28/16 Page 2 of 7
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`I accept the allegations in the complaint as true for purposes of the motions to dismiss.
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`BACKGROUND
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`Naruto is a six-year old crested macaque who lives in a reserve on the island of Sulawesi,
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`Indonesia. Compl. ¶ 14 [Dkt. No. 1]. He is “highly intelligent” and possesses “grasping hands
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`and opposable thumbs with the ability to move his fingers independently.” Id. ¶¶ 25, 27. Because
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`the reservation where he lives is immediately adjacent to a human village, Naruto has encountered
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`tourists and photographers throughout his life. Id. ¶¶ 28, 29. He was “accustomed to seeing
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`cameras, observing cameras being handled by humans, hearing camera mechanisms being
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`operated, and experienced cameras being used by humans without danger or harm to him and his
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`community.” Id. at ¶ 30. “On information and belief, Naruto authored the Monkey Selfies
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`sometime in or around 2011” by “independent, autonomous action” in examining and
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`manipulating Slater’s unattended camera and “purposely pushing” the shutter release multiple
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`times, “understanding the cause-and-effect relationship between pressing the shutter release, the
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`noise of the shutter, and the change to his reflection in the camera lens.” Id. ¶¶ 31, 33.
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`The Next Friends allege that Slater has repeatedly infringed on Naruto’s copyright on the
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`Monkey Selfies by “falsely claiming to be the photographs’ authors and by selling copies of the
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`images” for profit. Id. ¶35. They claim that defendants have violated sections 106 and 501 of the
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`Copyright Act of 1976, by displaying, advertising, reproducing, distributing, offering for sale, and
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`selling copies of the Monkey Selfies. Id. ¶¶ 43, 44. They allege that Naruto is entitled to
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`defendants’ profits from the infringement and seek to permanently enjoin defendants from
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`copying, licensing, or “otherwise exploiting” the Monkey Selfies and to permit Next Friends to
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`“administer and protect” Naruto’s authorship of and copyright in the Monkey Selfies. Id. at p. 9-
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`10.
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`LEGAL STANDARD
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`To survive a motion under either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6), the
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`plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 556 (2007). A claim is facially plausible when the plaintiff
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`pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for
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`the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There
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`must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts
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`do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to
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`“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.
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`In deciding whether the plaintiff has stated a claim upon which relief can be granted, the
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`Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the
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`plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court
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`is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of
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`fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.
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`2008). If the court dismisses the complaint, it “should grant leave to amend even if no request to
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`amend the pleading was made, unless it determines that the pleading could not possibly be cured
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`by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
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`DISCUSSION
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`Defendants argue the complaint should be dismissed for lack of standing under Article III
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`and the Copyright Act of 1976. Slater Mot. at 2-3 [Dkt. No. 28]; Blurb Mot. at 4-5 [Dkt. No. 24].
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`To demonstrate standing under Article III’s case or controversy requirement, a plaintiff must show
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`that: (i) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or
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`imminent, not conjectural or hypothetical; (ii) the injury is “fairly traceable” to the challenged
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`action of the defendants; and (iii) a favorable decision will be likely to redress the injury. Friends
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`of the Earth, Inc. v. Laidlaw Env’t Services (TOC), Inc., 528 U.S. 167, 180-81 (2000); see also
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`Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The Ninth Circuit has stated that
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`Article III “does not compel the conclusion that a statutorily authorized suit in the name of an
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`animal is not a ‘case or controversy.’” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir.
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`2004). I need not discuss Article III standing further, because regardless of whether Naruto fulfills
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`the requirements of Article III, he must demonstrate standing under the Copyright Act for his
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`claim to survive under Rule 12(b)(6).
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`A plaintiff seeking redress for a statutory violation must establish statutory standing.
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`Cetacean, 386 F.3d at 1175; Warth v. Seldin, 422 U.S. 490, 500 (1975). “If a plaintiff has
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`suffered sufficient injury to satisfy the jurisdictional requirement of Article III but Congress has
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`not granted statutory standing, that plaintiff cannot state a claim upon which relief can be
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`granted,” and dismissal is appropriate. Cetacean, 386 F.3d at 1175. Statutory standing exists
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`“when a particular plaintiff has been granted a right to sue by the specific statute under which he
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`or she brings suit.” Id. (internal citations and quotation marks omitted). Congress must “make its
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`intentions clear before [the courts] will construe a statute to confer standing on a particular
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`plaintiff.” Id.
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`“[T]he starting point for interpreting a statute is the language of the statute itself.”
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`Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The Copyright
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`Act protects “original works of authorship fixed in any tangible medium of expression, now
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`known or later developed, from which they can be perceived, reproduced, or otherwise
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`communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The
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`“fixing” of the work in the tangible medium of expression must be done “by or under the authority
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`of the author.” 17 U.S.C. § 101. The Copyright Act defines neither “works of authorship” nor
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`“author.” The Ninth Circuit has observed that the Act “purposefully left ‘works of authorship’
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`undefined to provide for some flexibility.” Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir.
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`2015).
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`Defendants argue that the Copyright Act confers no rights upon animals such as Naruto.
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`Next Friends respond that the Act has “no definitional limitation.” Opp. at 8 [Dkt. No. 31]. They
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`contend that standing under the Copyright Act is available to anyone, including an animal, who
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`creates an “original work of authorship.” Id. at 5. They argue that they have sufficiently alleged
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`that Naruto is the author of the Monkey Selfies and are not required to allege “anything else” to
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`demonstrate his standing. Id. at 7.
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`I disagree with Next Friends and follow the rationale of Cetacean. In that case, the
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`Cetacean Community (the “Cetaceans”), created by the “self-appointed attorney for all of the
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`world’s whales, porpoises, and dolphins,” filed suit on behalf of the Cetaceans for violations of the
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`Endangered Species Act, the Marine Mammal Protection Act, and the National Environmental
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`Policy Act. 386 F.3d at 1171-72. Reviewing the district court’s order granting dismissal, the
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`Ninth Circuit examined the language of each statute to assess whether it evidenced congressional
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`intent to confer standing on animals. None did. The court held that “if Congress and the President
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`intended to take the extraordinary step of authorizing animals as well as people and legal entities
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`to sue, they could, and should, have said so plainly.” Id. at 1179 (internal quotation marks,
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`citations, and modifications omitted).2
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`Here, the Copyright Act does not “plainly” extend the concept of authorship or statutory
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`standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The
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`Supreme Court and Ninth Circuit have repeatedly referred to “persons” or “human beings” when
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`analyzing authorship under the Act. See, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th
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`Cir. 2000) (“[A]n author superintends the work by exercising control. This will likely be a person
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`who has actually formed the picture by putting the persons in position, and arranging the place
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`where the people are to be.”) (internal quotation marks, citations and modifications omitted)
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`(emphasis added); Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997) (“For
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`copyright purposes, however, a work is copyrightable if copyrightability is claimed by the first
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`human beings who compiled, selected, coordinated, and arranged [the work].”) (emphasis added);
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`Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (“As a general rule, the author
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`is the party who actually creates the work, that is the person who translates an idea in a fixed,
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`tangible expression entitled to copyright protection.”) (emphasis added). Despite Next Friends’
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`assertion that declining to grant a monkey copyright to a photograph “would depart from well-
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`established norms,” Next Friends have not cited, and I have not found, a single case that expands
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`the definition of authors to include animals. Opp. at 15.
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`Moreover, the Copyright Office agrees that works created by animals are not entitled to
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`copyright protection. It directly addressed the issue of human authorship in the Compendium of
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`2 Similarly, in Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. Sea World
`Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1260-61 (S.D. Cal. 2012), PETA, acting as next
`friends for five orcas, brought an action against Sea World alleging that the orcas were being held
`in violation of the Thirteenth Amendment. Dismissing the case for lack of federal jurisdiction, the
`court held that the amendment’s language was “clear, concise, and not subject to the vagaries of
`conceptual interpretation” and as such “there is simply no basis to construe the Thirteenth
`Amendment as applying to non-humans.” Id. at 1264.
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`Case 3:15-cv-04324-WHO Document 45 Filed 01/28/16 Page 6 of 7
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`U.S. Copyright Office Practices issued in December 2014 (the “Compendium”). “When
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`interpreting the Copyright Act, [the courts] defer to the Copyright Office’s interpretations in the
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`appropriate circumstances.” Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038, 1041 (9th Cir.
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`2014); see also Garcia, 786 F.3d at 741-42 (describing an expert opinion by the Copyright Office
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`as reflecting a “body of experience and informed judgment to which courts and litigants may
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`properly resort for guidance”) (internal quotation marks and citations omitted). In section 306 of
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`the Compendium, entitled “The Human Authorship Requirement,” the Copyright Office relies on
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`citations from Trade-Mark Cases, 101 U.S. 94 (1879) and Burrow-Giles to conclude that it “will
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`register an original work of authorship, provided that the work was created by a human being.”
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`Compendium of the U.S. Copyright Office Practices § 306 (3d ed.). Similarly, in a section titled
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`“Works That Lack Human Authorship,” the Compendium states that, “[t]o qualify as a work of
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`‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement
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`are not copyrightable.” Id. at § 313.2 (internal citations omitted). Specifically, the Copyright
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`Office will not register works produced by “nature, animals, or plants” including, by specific
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`example, a “photograph taken by a monkey.” Id. 3
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`Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue
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`that this result is “antithetical” to the “tremendous [public] interest in animal art.” Opp. at 12.
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`Perhaps. But that is an argument that should be made to Congress and the President, not to me.
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`The issue for me is whether Next Friends have demonstrated that the Copyright Act confers
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`standing upon Naruto. In light of the plain language of the Copyright Act, past judicial
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`interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they
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`have not.
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`3 Next Friends argue that the opinion expressed in the Compendium should not apply, in part,
`because the Monkey Selfies are foreign created works and thus are not required to be registered.
`Opp. at 21. However, regardless of whether these particular photographs require registration, the
`Compendium provides guidance regarding the core, disputed question – whether authorship under
`the Copyright Act contemplates works created by animals. Therefore, I rely on the Compendium
`as an additional basis for my analysis to the extent that its interpretation has the “power to
`persuade.” Inhale, Inc., 755 F.3d at 1042.
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`Case 3:15-cv-04324-WHO Document 45 Filed 01/28/16 Page 7 of 7
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`Defendants’ motions to dismiss are GRANTED. Any amended complaint should be filed
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`CONCLUSION
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`within 20 days of this Order.
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`IT IS SO ORDERED.
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`Dated: January 28, 2016
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`______________________________________
`WILLIAM H. ORRICK
`United States District Judge
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