Appellate Briefs in Monkey Selfie Copyright Case

Case: 16-15469, 07/28/2016, ID: 10067080, DktEntry: 17, Page 1 of 38
Docket No. 1615469

____________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
____________________________________
NARUTO, by and through his Next Friend,
Plaintiff-Appellant,
v.
DAVID J. SLATER, et al.,
Defendants-Appellees
____________________________________
On Appeal from the United States District Court

for the Northern District of California
Case No. 3:15-cv-04324 (Orrick, J.)
____________________________________
OPENING BRIEF OF PLAINTIFFAPPELLANT

____________________________________
IRELL & MANELLA LLP

David A. Schwarz (Cal. Bar. No. 159376)
1800 Avenue of the Stars, Suite 900
Los Angeles, California 900674276
Telephone: (310) 2771010
Facsimile: (310) 2037199
dschwarz@irell.com
Attorneys for Plaintiff-Appellant Naruto
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Next Friend People
for the Ethical Treatment of Animals, Inc., certifies that People for the Ethical
Treatment of Animals, Inc., has no parent corporation and no publicly held
corporation owns People for the Ethical Treatment of Animals, Inc., stock.
IRELL & MANELLA LLP

Dated: July 28, 2016
By: /s/ David A. Schwarz
Attorneys for PlaintiffAppellant Naruto,

by and through his Next Friend, People
for the Ethical Treatment of Animals, Inc.
Of Counsel:
Jeffrey S. Kerr, Esq.

General Counsel
PETA FOUNDATION
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TABLE OF CONTENTS
Page(s)
STATEMENT OF JURISDICTION ................................................................ 1
STATEMENT OF THE ISSUE FOR REVIEW .............................................. 1
STATEMENT OF THE CASE ........................................................................ 1
A. Nature of the Case ........................................................................ 1
B. Procedural History ........................................................................ 2
STATEMENT OF FACTS ............................................................................... 3
SUMMARY OF ARGUMENT ........................................................................ 4
STANDARD OF REVIEW .............................................................................. 6
ARGUMENT .................................................................................................... 7
A. The Copyright Act grants standing to anyone who creates

an original work of authorship ................................................. 7
B. Authorship under the Copyright Act is not limited to

humans ....................................................................................... 12
C. The Copyright Act must be interpreted broadly to achieve

its purpose .................................................................................. 15
D. Animal authorship under the Copyright Act is an issue of

first impression ........................................................................... 19
E. The district court erroneously relied on the Compendium ......... 21
CONCLUSION ............................................................................................... 27
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TABLE OF AUTHORITIES
Page(s)
Cases
Aalmuhammed v. Lee,
202 F.3d 1227 (9th Cir. 2000) ............................................................................ 10
ABC, Inc. v. Aereo, Inc.,

__ U.S. __ , 134 S.Ct. 2498 (2014)..................................................................... 12
Action Tapes, Inc. v. Mattson,

462 F.3d 1010 (8th Cir. 2006) ............................................................................ 17
Authors Guild, Inc. v. HathiTrust,

755 F.3d 87 (2d Cir. 2014) .............................................................................8, 14
Bartok v. Boosey & Hawkes, Inc.,

523 F.2d 941 (2d Cir. 1975) ............................................................................... 26
Bell Atl. Bus. Sys. Servs., Inc. v. Hitachi Data Sys. Corp.,
No. C 9320079 JW, 1995 WL 836331 (N.D. Cal. Dec. 14, 1995) .................. 17
Bleistein v. Donaldson Lithographing Co.,

188 U.S. 239 (1903) ......................................................................................24, 25
Boyds Collection, Ltd. v. Bearington Collection, Inc.,

360 F. Supp. 2d 655 (M.D. Penn. 2005) ............................................................. 27
Burrow-Giles Lithographic Co. v. Sarony,

111 U.S. 53 (1884) .......................................................................................passim
Cetacean Cmty. v. Bush,

386 F.3d 1169 (9th Cir. 2004) ...................................................................... 11, 21
Christensen v. Harris County,

529 U.S. 576 (2000) ............................................................................................ 25
Cmty. for Creative Non-Violence v. Reid,

490 U.S. 730 (1989) ....................................................................................8, 9, 13
District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................................................................ 15
9840675 - ii -
DC Comics v. Towle,
802 F.3d 1012 (9th Cir.), cert. denied, 136 S.Ct. 1390 (2015) ............................ 8
Defenders of Wildlife v. Gutierrez,

532 F.3d 913 (D.C. Cir. 2008) .............................................................................. 7
Durham Industries, Inc. v. Tomy Corp.,

630 F.2d 905 (2d Cir. 1980) ............................................................................... 11
Ets-Hokin v. Skyy Spirits, Inc.,

225 F.3d 1068 (9th Cir. 2000) ............................................................................ 24
Feist Publns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340 (1991) ............................................................................................ 15
First Nat. Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ............................................................................................ 16
Goldstein v. California,
412 U.S. 546 (1973) ........................................................................................9, 16
Harper & Row, Publishers, Inc. v. Nation Enters.,

471 U.S. 539 (1985) ............................................................................................ 15
Imperial Toy Corp. v. Goffa Intl Corp.,

988 F. Supp. 617 (E.D.N.Y. 1997) ..................................................................... 13
Jewelers Circular Pub. Co. v. Keystone Pub. Co.,

274 F. 932 (2d Cir. 1921), cert. denied, 259 U.S. 581 (1922) ........................... 24
John Wiley & Sons, Inc. v. DRK Photo,

998 F. Supp. 2d 262 (S.D.N.Y. 2014) .................................................................. 8
Lee v. City of Los Angeles,

250 F.3d 668 (9th Cir. 2001) ................................................................................ 7
Los Angeles News Service v. Tullo,

973 F.2d 791 (9th Cir. 1992) .............................................................................. 24
Mason v. Jamie Music Pub. Co.,

658 F. Supp. 2d 571 (S.D.N.Y. 2009) ................................................................ 19
9840675 - iii -
McGary v. City of Portland,

386 F.3d 1259 (9th Cir. 2004) .............................................................................. 7
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,

545 U.S. 913 (2005) ............................................................................................ 12
Monge v. Maya Magazines, Inc.,

688 F.3d 1164 (9th Cir. 2012) ............................................................................ 18
New Idea Farm. Equip. Corp. v. Sperry Corp.,

916 F.2d 1561 (Fed. Cir. 1990) .......................................................................... 13
North Coast Indus. v. Jason Maxwell, Inc.,

972 F.2d 1031 (9th Cir. 1992) ............................................................................ 23
Nottage v. Jackson,
11 Q.B.D. 627 (1883) ......................................................................................... 10
Novak v. United States,

795 F.3d 1012 (9th Cir. 2015) .............................................................................. 6
Obergefell v. Hodges,
__ U.S. __ , 135 S.Ct. 2584 (2015)..................................................................... 20
Peters v. West,
692 F.3d 629 (7th Cir. 2012) .............................................................................. 19
Playboy Enterprises Inc. v. Dumas,

53 F.3d 549 (2d Cir.), cert. denied, 516 U.S. 1010 (1995) ................................ 13
Preminger v. Peake,
552 F.3d 757 (9th Cir. 2008) ................................................................................ 7
Quality King Distribs., Inc. v. LAnza Research Intl, Inc.,

523 U.S. 135 (1998) ............................................................................................ 13
Rhoades v. Avon Prods., Inc.,

504 F.3d 1151 (9th Cir. 2008) .............................................................................. 6
Santa Clara Cnty. v. Southern Pacific R. Co.,

118 U.S. 394 (1886) ............................................................................................ 16
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Shell Offshore, Inc. v. Greenpeace, Inc.,

709 F.3d 1281 (9th Cir. 2013) .............................................................................. 6
Silvers v. Sony Pictures Entmt, Inc.,

402 F.3d 881 (9th Cir.), cert. denied, 546 U.S. 827 (2005) ................................. 8
Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ............................................................................................ 25
Sony Corp. of Am. v. Universal City Studios,

464 U.S. 417 (1984) ........................................................................................5, 12
Trade-Mark Cases, 100 U.S. 82, 94 (1879)............................................................. 23
Twentieth Century Music Corp. v. Aiken,

422 U.S. 151 (1975) ............................................................................................ 15
U.S. Auto Parts Network, Inc. v. Parts Geek, LLC,

692 F.3d 1009 (9th Cir. 2012) .............................................................................. 9
United States v. Mead Corp.,

533 U.S. 218 (2001) ............................................................................................ 25
United States v. Nordic Vill. Inc.,

503 U.S. 30 (1992) .............................................................................................. 11
United States v. Paramount Pictures, Inc.,

334 U.S. 131 (1948) ............................................................................................ 15
Urantia Foundation v. Maaherra,

114 F.3d 955 (9th Cir. 1997) ........................................................................21, 26
Warren v. Fox Family Worldwide, Inc.,

328 F.3d 1136 (9th Cir. 2003) ............................................................................ 13
White-Smith Music Publishing Co. v. Apollo Co.,

209 U.S. 1 (1908) ................................................................................................ 19
Worldwide Church of God v. Philadelphia Church of God, Inc.,

227 F.3d 1110 (9th Cir. 2000), cert. denied, 532 U.S. 958 (2001) .............. 18, 19
Statutes
17 U.S.C. 101 ..................................................................................................14, 22
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17 U.S.C. 102 ..........................................................................................4, 7, 15, 17
17 U.S.C. 201 ..........................................................................................8, 9, 12, 17
17 U.S.C. 302(c) ................................................................................................... 14
17 U.S.C. 409(3) ................................................................................................... 14
17 U.S.C. 411(a) ................................................................................................... 22
17 U.S.C. 501 .......................................................................................................... 8
28 U.S.C. 1291 ........................................................................................................ 1
28 U.S.C. 1331 ........................................................................................................ 1
28 U.S.C. 1338(a) ................................................................................................... 1
35 U.S.C. 100(f) ...................................................................................................... 9
35 U.S.C. 116(9) ..................................................................................................... 9
Rules
FED. R. APP. P. 4(a)(1)(A) ......................................................................................... 1
FED. R. CIV. PROC. 17(c) .....................................................................................4, 20
Other Authorities
U.S. Constitution, Art. I, Sec. 8, Cl. 8 ....................................................................... 4
H. Rep. No. 1476, 94th Cong., 2d Sess. (1976)...........................................10, 14, 19
Compendium of the U.S. Copyright Office Practices, 2d Edition

(1984) .................................................................................................................. 26
Compendium of the U.S. Copyright Office Practices, 3d Edition

(2014) ................................................................................................22, 23, 25, 26
Aoki, Distributive and Syncretic Motives in Intellectual Property

Law (with Special Reference to Coercion, Agency, and
Development), 40 U.C. DAVIS L. REV. 717 (2007) .......................................... 20
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Balganesh, The Obligatory Structure of Copyright Law: Unbundling

the Wrong of Copying, 125 HARV. L. REV. 1664 (2012) ................................. 19
Hattenbach & Glucoft, Patents In An Era Of Infinite Monkeys And

Artificial Intelligence, 19 STAN. TECH. L. REV. 32 (2015) ................................. 6
Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT

5.01[A] (2015) ............................................................................................... 5, 6
Miller, Copyright Protection for Computer Programs, Databases, and

ComputerGenerated Works: Is Anything New Since CONTU?,
106 HARV. L. REV. 977 (1993) .....................................................................21, 22
Sterk, Rhetoric and Reality in Copyright Law, 94 MICH. L. REV.

1197 (1996) ......................................................................................................... 15
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STATEMENT OF JURISDICTION
The United States District Court for the Northern District of California
(district court) has subject matter jurisdiction over this copyright infringement.
28 U.S.C. 1331 and 1338(a). The district court dismissed the complaint with
prejudice for lack of standing under the Copyright Act and entered judgment on
February 18, 2016. This Court has jurisdiction over the current appeal from the
district courts final order. 28 U.S.C. 1291. Notice of appeal was timely filed in
accordance with FED. R. APP. P. 4(a)(1)(A).
STATEMENT OF THE ISSUE FOR REVIEW
Whether the district court erred in concluding that, because Congress did not
expressly grant standing to animals to sue under the Copyright Act of 1976, 17
U.S.C. 101 et seq., Plaintiff lacked standing as a matter of law to bring claims
under the Copyright Act.
STATEMENT OF THE CASE
A. Nature of the Case
This case presents an issue of first impression: Whether human authorship is
required for protection under the Copyright Act. Plaintiff Naruto, a seven-year-old
crested macaque, took multiple photographs of himself (the Monkey Selfies)
using defendant David Slaters camera. [Excerpts of Record (ER) 20] There is
no dispute that Naruto took the photographs spontaneously and without human
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assistance. In every practical (and definitional) sense, he is the author of the
works.
Defendants argue that animals have no standing under the statutethat they
cannot be authors. Had the Monkey Selfies been made by a human using Slaters
unattended camera, that human would undisputedly be declared the author and
copyright owner of the photographs. Nothing in the Copyright Act limits its
application to human authors. The U.S. Supreme Court has long given the
constitutional term Authors the broadest possible meaning. See Burrow-Giles
Lithographic Co. v. Sarony (Sarony), 111 U.S. 53, 58 (1884)). On its face, the
Copyright Act applies to anyone who is an author, including Naruto; that is, the
originator; maker; [or] one who completes a work. Id.
Naruto therefore properly seeks a declaratory judgment that he has the right
to own and benefit from the copyright in the Monkey Selfies in the same manner
and to the same extent as any other author, as well as other relief.
B. Procedural History
Plaintiff filed the complaint against defendants David J. Slater, Wildlife
Personalities, Ltd., and Blurb, Inc. (collectively, Defendants), on September 21,
2015. Defendants moved to dismiss for lack of standing and failure to state a
claim. [ER 12] Without reaching the merits of the case, and despite recognizing the
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precedent set by this Court that animals may be granted standing under Article III
of the Constitution, the district court dismissed the Complaint on the sole ground
that the Copyright Act does not expressly grant standing to animals. [ER 14].
STATEMENT OF FACTS
Naruto is a free, autonomous seven-year old1 crested macaque, living on the
island of Sulawesi, Indonesia. [ER 20] In or around 2011, Naruto picked up an
unattended camera brought into Narutos habitat by defendant Slater. [Id.] Using
that camera, Naruto took a series of photographs of himself through a series of
purposeful and voluntary actions that were entirely unaided by Slater. [Id.] The
Monkey Selfies quickly became internationally famous. Seeking to capitalize on
their popularity, Defendants published and sold a book containing Narutos
Monkey Selfies, including one on its cover. [ER 2021] In that book and elsewhere
(though tellingly not in their motions to dismiss), Defendants claimed to own
copyrights to the Monkey Selfies, even as they admitted that Naruto created the
photographs without human assistance. [Id.]
Though he is a free animal, Naruto is not unknown to humans. Naruto is part
of a small population of Sulawesi crested macaques who have been studied for
nearly a decade by, among others, Dr. Antje Engelhardt, a German primatologist
1
The Complaint alleges that Naruto is six years old. He turned seven on November
23, 2015, after the complaint was filed. [ER 20]
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and ethologist. [ER 23] Dr. Engelhardt and her team have known, monitored, and
studied Naruto since his birth. [Id.] Based upon their personal knowledge of
Naruto, she and her team were able to recognize Naruto as both the author and
subject of the Monkey Selfies. Dr. Engelhardt and People for the Ethical Treatment
of Animals (PETA) share a commitment and dedication to Naruto and the
preservation of both his habitat and his rights. [Id.] Pursuant to that commitment,
this lawsuit was filed on Narutos behalf. See FED. R. CIV. P. 17(c).
SUMMARY OF ARGUMENT
The Constitution authorizes Congress [t]o 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. U.S. CONST. art. I,
8, cl. 8. Neither the Copyright Clause nor the Copyright Act contains on its face a
limitation solely to authors with human attributes or characteristics. The district
court erred in carving out such an exemption here. It is not necessaryindeed it is
antithetical to the purpose of the Copyright Actto specify who can be an author,
as that question is determined by looking at the attributes of the work sought to be
protected. The Copyright Act protects original works of authorship, not works of
human authors. See 17 U.S.C. 102. Moreover, the Monkey Selfies have all the
attributes required for protection under the Copyright Act. To exempt them from
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protection on the sole ground that Congress did not specify that animals can be
authors assumes erroneously that such specification would have been necessary.
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.
Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 429 (1984). Because
copyright protection exists primarily to advance societys interest in increasing
creative output, it follows that the protection under the Copyright Act does not
depend on the humanity of the author, but on the originality of the work itself. The
Copyright Act was intended to be broadly applied and to gradually expand to
include new forms of expression unknown at the time it was enacted. Congress and
the courts have explained that copyright protection is critical to ensuring the
general public has access to works of authorship. The public places value in these
worksand, self-evidently, so do the Defendants.
While the facts present a question of first impression, the issue is not a trivial
onea point underscored by the rivers of ink [that] are spilt on the related
question of whether computers can be considered authors for copyright purposes.
Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT 5.01[A] (2015).
Whether works independently created by artificially intelligent computers are
entitled to copyright protection is, as Professor Nimmer notes, a question that may
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soon demand an answer. Id.2 The issue now before this Court is therefore of
considerable moment to the overarching question of whether the public is entitled
to the benefits derived from works of authorship where, as here, the author is not
human.
Given the plain reading of the statute, the purposes of the Copyright Act, and
Defendants own acknowledgment that copyright protection is necessary under the
circumstances, that question should be answered in the affirmative.
STANDARD OF REVIEW
Questions of standing are reviewed de novo. Novak v. United States, 795
F.3d 1012, 1017 (9th Cir. 2015) (We review de novo a district courts
determination on the issue of standing.); Shell Offshore, Inc. v. Greenpeace, Inc.,
709 F.3d 1281, 1286 (9th Cir. 2013) (We review standing, ripeness, and mootness
de novo.); Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 115657 & n.3 (9th Cir.
2008) (We review de novo dismissals under Rules 12(b)(1) and 12(b)(6).).
2
We have entered an era in which computers are not just crunching numbers but
generating works of a sort that have historically been protected as creative. It
remains to be seen whether equitable considerations will persuade courts to prevent
owners of works generated by brute computational force (and therefore would not
be otherwise copyrightable) from piggybacking on the success of identical works
made popular by others, or whether legislative intervention in the copyright arena
will be required to address these recent technological advances. Hattenbach &
Glucoft, Patents In An Era Of Infinite Monkeys And Artificial Intelligence, 19
STAN. TECH. L. REV. 32, 33-34 (2015).
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Underlying factual findings relevant to issues of standing are reviewed for clear
error. See Preminger v. Peake, 552 F.3d 757, 762 n.3 (9th Cir. 2008).
On a motion to dismiss, [a]ll factual allegations set forth in the complaint
are taken as true and construed in the light most favorable to plaintiffs. Lee v.
City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (quoting Epstein v.
Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). When assessing
standing challenge, the court must be careful not to decide the questions on the
merits for or against plaintiff, and must therefore assume that on the merits the
plaintiffs would be successful in their claims. Defenders of Wildlife v. Gutierrez,
532 F.3d 913, 924 (D.C. Cir. 2008). Where, as here, a complaint raises novel legal
questions, the Court should be especially reluctant to dismiss on the basis of the
pleadings. McGary v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004)
(citing Elec. Constr. & Maint. Co., Inc. v. Maeda Pac. Corp., 764 F.2d 619, 623
(9th Cir. 1985)).
ARGUMENT
A. The Copyright Act grants standing to anyone who creates an
original work of authorship
The Copyright Act applies to original works of authorship fixed in a
tangible medium of expression, now or later developed . 17 U.S.C. 102(a).
The Copyright Act specifies who has standing to sue: The legal or beneficial
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owner of an exclusive right under a copyright is entitled to institute an action
for any infringement . Id. 501(b) (emphasis added). Thus, standing is given to
any copyright owner. See Silvers v. Sony Pictures Entmt, Inc., 402 F.3d 881,
884 (9th Cir.), cert. denied, 546 U.S. 827 (2005) (The meaning of that provision
appears clear. To be entitled to sue for copyright infringement, the plaintiff must be
the legal or beneficial owner of an exclusive right under a copyright.); John
Wiley & Sons, Inc. v. DRK Photo, 998 F. Supp. 2d 262, 276 (S.D.N.Y. 2014)
(Section 501(b) of the Copyright Act establishes who may sue for infringement of
a copyright.).
The Copyright Act also defines owner, at least initially: Copyright in a
work protected under this title vests initially in the author or authors of the work.
Id. at 201(a) (emphasis added). Thus, to be an owner and, by extension, to
have standing, the plaintiff need only allege to be the author of a disputed work.
See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (The
Copyright Act of 1976 provides that copyright ownership vests initially in the
author or authors of the work.); DC Comics v. Towle, 802 F.3d 1012, 1024 (9th
Cir.), cert. denied, 136 S.Ct. 1390 (2015) (Accordingly, the author of an
underlying work is entitled to sue a third party who makes an unauthorized copy
.) (emphasis added).
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Notably, the Copyright Act does not define author. Nor was such a
definition necessary. The term author comes directly from the Constitution itself,
which grants Congress the authority to protect the Writings of Authors. See
Goldstein v. California, 412 U.S. 546, 561 (1973) (citing U.S. CONST. Art. I, 8).
As a result, Congress did not have to define the term. Long before the Copyright
Act of 1976, the Supreme Court interpreted the constitutional meaning of author
in its broadest possible sense: While an author may be viewed as an individual
who writes an original composition, the term, in its constitutional sense, has been
construed to mean an originator, he to whom anything owes its origin.
Goldstein, 412 U.S. at 561 (quoting Sarony, 111 U.S. at 58). As a general rule, the
author is the party who actually creates the work . Cmty. for Creative Non-
Violence, 490 U.S. at 737; see also U.S. Auto Parts Network, Inc. v. Parts Geek,
LLC, 692 F.3d 1009, 1015 (9th Cir. 2012) (Under 201(a) of the Copyright Act,
copyright ownership vests initially in the author or authors of the work, which is
generally the creator of the copyrighted work.). In passing the Copyright Act,
Congress merely adopted this judicial definition of author.3
3
In contrast, the patent statutes define inventor to mean the individual who
invented or discovered the subject matter of the invention. 35 U.S.C. 100(f)
(emphasis added). The statutes also describe joint inventors as two or more
persons who conceive of the invention. 35 U.S.C. 116(9) (emphasis added).
9840675 -9-
Likewise, the Copyright Act did not explain how to identify the author of a
photographcourts had already done that as well. Over a century ago, in Sarony,
the Supreme Court considered whether the author of a photograph was the
individual who physically takes the picture or the individual who makes an image
out of the negative. To answer this question, the Court articulated the standard that
an author is he to whom anything owes its origin. 111 U.S. at 58. Applying that
standard to a photograph, the Court concluded that the author is the one who
effectively is as near as he can be the cause of the picture which is produced.
Sarony, 111 U.S. at 61 (quoting Nottage v. Jackson, 11 Q.B.D. 627 (1883)). In
other words, it is typically the one who sets it up and snaps the shutter.
Aalmuhammed v. Lee, 202 F.3d 1227, 1232 (9th Cir. 2000).
Here, Naruto has sufficiently alleged that he is the one to whom the Monkey
Selfies owe their origin. Thus, Naruto has alleged that he is the author of the
Monkey Selfies, and, by extension, the owner of their copyrights.
Despite meeting all statutory requirements for standing, the district court
concluded that Naruto cannot state a claim under the Copyright Act because the
statute does not expressly grant standing to animals. But that reasoning misses the
mark: Congress did not provide an express definition at all. By its silence,
Congress accepted the broad constitutional notion of authorship and the judicial
construction that had been in place since at least the 19th century. See H. Rep. No.
9840675 - 10 -
1476, 94th Cong., 2d Sess. 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664.
(The phrase original works of authorship, which is purposely left undefined, is
intended to incorporate without change the standard of originality established by
the courts under the present copyright statute.) (emphasis added); Durham
Industries, Inc. v. Tomy Corp., 630 F.2d 905, 909 n.7 (2d Cir. 1980) (quoting
same). Naruto easily meets this definition.
In reaching its conclusion, the district court relied on this Courts opinion in
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004), which suggested
that animals lack standing absent an express authorization by statute. In Cetacean,
this Court concluded that animals lack standing to sue the United States under the
Endangered Species Act, the Administrative Procedures Act, and other statutes,
because standing under those statutes was not expressly granted to animals.
However, the statutes at issue in Cetacean differ from the Copyright Act in
fundamental ways. First, the statutes at issue in Cetacean represented a waiver of
the United States sovereign immunity, and such waivers, unlike the Copyright
Act, are narrowly construed. See United States v. Nordic Vill. Inc., 503 U.S. 30, 34
(1992) ([T]he Governments consent to be sued must be construed strictly in
favor of the sovereign .) (internal quotations omitted). Second, unlike the
Copyright Act, the statutes at issue in Cetacean actually define who has standing.
See Cetacean, 386 F.3d at 1175 (addressing the definition of person under the
9840675 - 11 -
statute). In contrast, the Copyright Act makes no attempt to define those who have
standing. Thus, it is impossible to limit the Copyright Act to only those who were
expressly granted standing. Doing so would effectively exclude everyone.
Naruto has sufficiently alleged that he is the author of the Monkey Selfies.
Naruto alleges, and Defendants admit, that Naruto was responsible for creating the
Monkey Selfies. [ER 20] Naruto further alleges that no human intended to, or did
in fact, assist in creating the Monkey Selfies. [Id.] Thus, Naruto has sufficiently
alleged that he is the author of the Monkey Selfiesthat he is their originator,
the one to whom the photographs owe their origin. Naruto is not required to
allege anything else to have standing in this Court.
B. Authorship under the Copyright Act is not limited to humans
The Copyright Act recognizes that not all authors will be human. Most
prominently, it provides that if a work is created in an employment relationship,
then the employer is considered the author. 17 U.S.C. 201(b). This
proposition is so firmly established in the jurisprudence that most copyright cases
9840675 - 12 -
to reach the United States Supreme Court have been filed by authors who are non-
humans, ranging from motion picture studios4 to music publishers5 to others.6
It is important to appreciate that the corporate employer which qualifies as
the copyright author is not merely the successor to a nominal human author.
Under this statute, the title author does not begin with the creator and then pass
to the employer; rather, the rights of authorship vest initially in the corporation
itself. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1145 (9th Cir.
2003) ([T]he Act does not envision a work-for-hire arrangement as an
assignment, but rather provides for initial vesting of all rights of authorship in
the person for whom the work was prepared.) (emphasis in original).7 Thus, when
the employer is a corporation, it is the author under the statute. See Playboy
4
E.g., ABC, Inc. v. Aereo, Inc., __ U.S. __ , 134 S.Ct. 2498 (2014); Sony Corp. v.
Universal City Studios, Inc., 464 U.S. 417 (1984).
5
E.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
6
E.g., Quality King Distribs., Inc. v. LAnza Research Intl, Inc., 523 U.S. 135,
138 (1998) (arising out of case in which a California corporation engaged in the
business of manufacturing and selling shampoos, conditioners, and other hair care
products [and] has copyrighted the labels that are affixed to those products);
Cmty. for Creative Non-Violence, 490 U.S. at 733 (appeal arising from trial court
ruling that author of sculpture was nonprofit unincorporated association dedicated
to eliminating homelessness)
7
This rule stands in marked opposition to patent standards. See New Idea Farm.
Equip. Corp. v. Sperry Corp., 916 F.2d 1561, 1566 n.4 (Fed. Cir. 1990) (explicitly
barring legal entities from obtaining inventorship status because people conceive,
not companies) (emphasis added).
9840675 - 13 -
Enterprises Inc. v. Dumas, 53 F.3d 549, 565 (2d Cir.), cert. denied, 516 U.S. 1010
(1995) (Playboy is the author of those works and owns their copyrights);
Imperial Toy Corp. v. Goffa Intl Corp., 988 F. Supp. 617, 620 (E.D.N.Y. 1997)
(Chinese entity was an author under Copyright Act because statute does not
distinguish based on the nationality of the author of the work).
The Copyright Act also specifically defines the duration of copyright
protection for anonymous works, 17 U.S.C. 302(c), i.e., works for which no
natural person is identified as author. 17 U.S.C. 101 (emphasis added). Such
anonymous works may be registered without ever revealing the authors identity.
See 17 U.S.C. 409(3); cf. Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 92 (2d
Cir. 2014) (An orphan work is an out-of-print work that is still in copyright, but
whose copyright holder cannot be readily identified or located.). Thus, Congress
explicitly bestowed copyrights even when the author is not identified, leaving no
statutory impediment for a human to register an anonymous work on behalf of an
animal author.
That no prior case has sought copyright protection on behalf of an animal is
hardly dispositive. Congress explicitly noted that the history of copyright law has
been one of gradual expansion in the types of works accorded protection. See
Notes of Committee on the Judiciary, H. Rep. No. 1476, 94th Cong., 2d Sess. 51
(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664. Authors are continually
9840675 - 14 -
finding new ways of expressing themselves, but it is impossible to foresee the
forms that these new expressive methods will take. Id. Congress enshrined this
principle into the Copyright Act itself, explicitly including protections for original
works now or later developed. 17 U.S.C. 102(a) (emphasis added). This
historical context and Congresss clear legislative intent is a critical tool of
interpretation to determine the public understanding of a legal text in the period
after its enactment. District of Columbia v. Heller, 554 U.S. 570, 605 (2008).
C. The Copyright Act must be interpreted broadly to achieve its
purpose
The primary objective of copyright is not to reward the labor of authors, but
[t]o promote the Progress of Science and useful Arts. Feist Publns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (alteration in original); Harper &
Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985) (It is evident
that the monopoly granted by copyright actively served its intended purpose of
inducing the creation of new material of potential historical value.).
The immediate effect of our copyright law is to secure a fair return for an
authors creative labor. But the ultimate aim is, by this incentive, to stimulate
artistic creativity for the general public good. Twentieth Century Music Corp.,
422 U.S. at 156; see also United States v. Paramount Pictures, Inc., 334 U.S. 131,
158 (1948) (It is said that reward to the author or artist serves to induce release to
9840675 - 15 -
the public of the products of his creative genius.); Sterk, Rhetoric and Reality in
Copyright Law, 94 MICH. L. REV. 1197, 1203 (1996) ([I]t is incentive language
that pervades the Supreme Courts copyright jurisprudence.).
To accomplish this end, Congress and the Supreme Court have interpreted
the terms Writings and Authors as broadly as possible. These terms have not
been construed in their narrow literal sense but, rather, with the reach necessary to
reflect the broad scope of constitutional principles. Goldstein, 412 U.S. at 561.
For example, after photographs were invented, the Supreme Court had no
doubt they were Writings, even if not actually written, because the term
Writings is susceptible of a more enlarged definition. Sarony, 111 U.S. at 58.
The only reason why photographs were not included in the extended list in the act
of 1802 is, probably, that they did not exist, as photography, as an art, was then
unknown. Id. Failing to recognize animals as authorseven if animal-created
art was unknown until recentlywould impermissibly curtail the broad scope of
the Copyright Act and inhibit its constitutionally mandated goals.
Yet if animals cannot be authors, there is no copyright protection for their
works. 17 U.S.C. 102(a), 201(a). This is fundamentally at odds with the fact
that [c]opyright protection extends to all original works of authorship fixed in
any tangible medium of expression. Action Tapes, Inc. v. Mattson, 462 F.3d
1010, 1013 (8th Cir. 2006) (emphasis added); see also Bell Atl. Bus. Sys. Servs.,
9840675 - 16 -
Inc. v. Hitachi Data Sys. Corp., No. C 9320079 JW, 1995 WL 836331, at *3
(N.D. Cal. Dec. 14, 1995) (Copyright protection extends to all original works of
authorship fixed in any tangible medium of expression) (emphasis added). It is
also antithetical to the public interest, and hence, the stated purpose of the
Copyright Clause. There is no doubt that the general public has an interest in works
of art, regardless of their authors characteristics or attributes. The tremendous
interest in Narutos work and Defendants attempts to exploit that interest (and to
bar others from doing so) only buttresses this conclusion.
In the proceedings below, Defendants argued that animals cannot hold
copyrights because animals do not respond to the financial incentives of copyright
ownership. But standing under the Copyright Act does not require that the author
intend to publish the work, or to profit from those works. See Monge v. Maya
Magazines, Inc., 688 F.3d 1164, 1178 (9th Cir. 2012) (It may seem paradoxical to
allow copyright to be obtained in secret documents, but it is not. Federal copyright
is now available for unpublished works that the author intends to never see the
light of day.); Worldwide Church of God v. Philadelphia Church of God, Inc.,
227 F.3d 1110, 1115 (9th Cir. 2000), cert. denied, 532 U.S. 958 (2001) (Even an
author who had disavowed any intention to publish his work during his lifetime
was entitled to protection of his copyright.). Nor does standing require an author
to derive any monetary gain from his work. Worldwide Church of God, 227 F.3d at
9840675 - 17 -
1115 (That right is not diminished or qualified by the fact that [appellant] is a not-
for-profit organization and does not realize monetary benefit from the use of the
copyrighted work.). Thus, in Monge, this Court held that copyright protection
extended to wedding photographs that were taken solely for the couples private
use, even though the photographs would have never been published or earned a
single dollar but for the actions of the infringing party. Id.8
Moreover, it is irrelevant that Naruto cannot exploit his copyright without
the assistance of humans. Human childrenand even certain incapacitated
adultscannot reproduce or sell copyrighted works without the assistance of
others. But they are still authors under the Copyright Act. See generally Notes of
Committee on the Judiciary, H. Rep. No. 1476, 94th Cong., 2d Sess. 126 (1976),
8
As Justice Holmes pointed out in White-Smith Music Publishing Co. v. Apollo
Co., copyright embraces the right to exclude others from interference, not
directed to an object in possession or owned, but is in vacuo, so to speak. It is a
prohibition of conduct remote from the persons or tangibles of the party having the
right. 209 U.S. 1, 18-19 (1908) (Holmes, J, concurring). Copyright law focuses
not on a right that actively enables the exclusive use of the expression, but rather
forbidding all others from copying the expression; that is, a duty not to copy.
Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong
of Copying, 125 HARV. L. REV. 1664, 1670 (2012). By placing the focus on
rectifying the harm caused by the infringers duty not to copy, copyright law
insures that the publics grant of rights to an authornot just the private benefits
accorded to the authorare to be treated with respect. See e.g., Peters v. West,
692 F.3d 629, 63334 (7th Cir. 2012) (Fundamentally, proving the basic tort of
infringement simply requires the plaintiff to show that the defendant had an actual
opportunity to copy the original and that the two works share enough unique
features to give rise to a breach of the duty not to copy anothers work.).
9840675 - 18 -
reprinted in 1976 U.S.C.C.A.N. 5659, 5741(referencing the legally appointed
guardians or committees of persons incompetent to sign because of age or mental
disability); Mason v. Jamie Music Pub. Co., 658 F. Supp. 2d 571 (S.D.N.Y. 2009)
(addressing copyright to song lyrics written by a minor). Because children cannot
assert their rights without the help of others, they are permitted, as here, to present
their case through another party acting on their behalf. See FED. R. CIV. P. 17(c).
No authority supports the district courts judicially created exception for
animal-created works. The fact that existing case law contains a lacuna in
recognizing ownership for this category scarcely leads to the result that protection
must be denied. The district court erroneously resolved this question of first
impression, as is shown below.
D. Animal authorship under the Copyright Act is an issue of first
impression
The fact that copyright ownership by an animal has not been previously
asserted does not mean that such rights cannot be asserted: If rights were defined
by who exercised them in the past, then received practices could serve as their own
9840675 - 19 -
continued justification and new groups could not invoke rights once denied.
Obergefell v. Hodges, __ U.S. __ , 135 S.Ct. 2584, 2602 (2015).9
As the Supreme Court recognized when it first considered whether the
new technology of photography was a Writing, those who came before us used
the language they did because photography (like animal-created art) was then
unknown. Sarony, 111 U.S. at 58. Since no previous case has considered the
possibility of an animal author, it is hardly surprising that previous cases would
refer to authors as humans. As a corollary, any reference to humans is mere dicta
and does not foreclose a finding of animals as authors if the issue were presented.
Cetacean, 386 F.3d at 1173 (A statement is dictum when it is made during the
course of delivering a judicial opinion, but is unnecessary to the decision in the
case and is therefore not precedential.).
Indeed, the only time that this Court has ever considered the possibility of a
non-human author, it declined to answer the question:
The copyright laws, of course, do not expressly require human

authorship, and considerable controversy has arisen in recent years
over the copyrightability of computer-generated works. We agree with
[the appellee] however, that it is not creations of divine beings that the
9
Before the Civil War, the U.S. Patent Office held that inventions by slaves could
not be patented by anyone because slaves could not own property and slaveholders
were not the inventors. See Aoki, Distributive and Syncretic Motives in
Intellectual Property Law (with Special Reference to Coercion, Agency, and
Development), 40 U.C. DAVIS L. REV. 717, 801 (2007).
9840675 - 20 -
copyright laws were intended to protect, and that in this case some
element of human creativity must have occurred in order for the Book
to be copyrightable. At the very least, for a worldly entity to be guilty
of infringing a copyright, that entity must have copied something
created by another worldly entity.
Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997) (citing Miller,
Copyright Protection for Computer Programs, Databases, and Computer
Generated Works: Is Anything New Since CONTU?, 106 HARV. L. REV. 977
(1993)). Notably, when presented with the opportunity to do so, this Court
expressly declined to hold that only humans can be authors. Rather, this Court
merely observed that authorship by celestial beings cannot be proven, and that
even celestially inspired words need worldly hands to record them. Id. Of course,
unlike heavenly revelations that require human hands to write them, human hands
are not required to take a photograph. Thus, insofar as the issue of non-human
authorship has been considered by this Court, it remains an open question. The
only requirement articulated by this Court so far is that the author be of this
world. See id. And Naruto certainly meets that requirement.10
E. The district court erroneously relied on the Compendium
In finding that animals nevertheless lack standing to sue under the Copyright
Act, the district court relied on the Compendium of the U.S. Copyright Office
10
Defendant Slater publicly claims to hold the copyrights to the Monkey Selfies.
[ER 20] By conceding the copyrightability of the works, the only remaining
question is identifying the author. Here, the only possible author is Naruto.
9840675 - 21 -
Practices, 3d Edition (2014) (Compendium), which states that human authorship
is a requirement for registering a copyright with the U.S. Copyright Office. The
district courts reliance on the Compendium was misplaced. As an initial matter,
because the Monkey Selfies are foreign works, they do not require registration with
the Copyright Office. See 17 U.S.C. 101 and 411(a). Moreover, the
Compendium is not binding on the courtsand, indeed, does not even provide
guidance because it does not explain how the Copyright Office reached the
conclusion that animal-created works cannot be registered. The two cases cited in
the Compendium fall woefully short of supporting that conclusion.
First, the Compendium cites Trade-Mark Cases, 100 U.S. 82, 94 (1879),
which held that copyright law protects the fruits of intellectual labor that are
founded in the creative powers of the mind. Second, it cites Sarony, which held
that copyright law is limited to original intellectual conceptions of the author.
111 U.S. at 58. Neither case held, or even considered, whether a human mind is
necessary for copyright protection. Rather, those cases were addressing the
requirement that copyrightable works must be original. See id. The Monkey
Selfies easily meet that requirement, as the threshold for originality is minimal:
Originality in this context means little more than a prohibition of actual copying.
North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992).
There is no suggestion that Narutos photographs were copied from any third party.
9840675 - 22 -
They are originalotherwise they never would have become so popular. Thus, by
concluding that animal-created works cannot be registered, the Compendium not
only failed to provide supporting analysis, it also reached the wrong conclusion,
which in any event is not binding on this Court.
Moreover, federal courts have suggested for over a century that every
photograph willby its very naturebe sufficiently original because no two
photographs will ever be exactly the same. In Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239 (1903), the Supreme Court held that
chromolithographs, which depict real scenes and people as photographs do, were
copyrightable because they were the personal reaction of an individual upon
nature. Personality always contains something unique. Id. at 250. Building on
Bleistein, Judge Learned Hand considered it likely that every photograph would be
copyrightable because no photograph, however simple, can be unaffected by the
personal influence of the author, and no two will be absolutely alike. Jewelers
Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932, 934 (2d Cir. 1921), cert.
denied, 259 U.S. 581 (1922). More recently, this Court observed that Judge Hands
comment has become the prevailing view of modern copyright law, leaving it
likely that all photographs are sufficiently original by their nature to merit
copyright protection. Los Angeles News Service v. Tullo, 973 F.2d 791, 793 (9th
Cir. 1992); see also Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074 (9th Cir.
9840675 - 23 -
2000) (Indeed, the idea that photography is art deserving [copyright] protection
reflects a longstanding view of AngloAmerican law.).
The district court departs from the well-established norm that every
photograph is subject to copyright protection. See Ets-Hokin, 225 F.3d at 1073
(holding that photos of vodka bottles were protected by copyright given the low
threshold for originality under the Copyright Act, as well as the longstanding and
consistent body of case law holding that photographs generally satisfy this minimal
standard); see also Bleistein, 188 U.S. at 250 (The least pretentious picture has
more originality in it than directories and the like, which may be copyrighted.)
The Compendium itself acknowledges that it does not override any existing
statute or regulation. The policies and practices set forth in the Compendium do not
in themselves have the force and effect of law and are not binding upon the
Register of Copyrights or U.S. Copyright Office staff. Compendium at p. 2. The
Supreme Court has held that lower courts may consider the interpretations set forth
in administrative manuals, such as the Compendium, only to the extent that such
documents have the power to persuade. Christensen v. Harris County, 529 U.S.
576, 587 (2000) (internal citations omitted). The weight of [the agencys]
judgment in a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade .
9840675 - 24 -
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see also United States v. Mead
Corp., 533 U.S. 218, 228 (2001) (stating that deference to agency opinion varies
with the degree of the agencys care, its consistency, formality, and relative
expertness, and to the persuasiveness of the agencys position). Furthermore, the
Copyright Office has no authority to give opinions or define legal terms and its
interpretation on an issue never before decided should not be given controlling
weight. Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 94647 (2d Cir. 1975)
(citing DeSylva v. Ballentine, 351 U.S. 570, 57778 (1956)). And, here, it is
undisputed that animal authorship is an issue never before decided.
Thus, the district court should have been especially wary of seeking
guidance from the Compendium. See id. Rather, the district court should have
followed the approach taken by this Court in Urantia and eschewed the ill-
reasoned guidance of the Compendium on the issue of non-human authorship. The
1984 version of the Compendium declared that for a work to be copyrightable, it
must owe its origin to a human being. Compendium of the U.S. Copyright Office
Practices, 2d Edition 202.02(b) (1984). Despite this pronouncement, this Court
in Urantia ignored the Compendium, observing copyright laws, of course, do not
expressly require human authorship . 114 F.3d at 958.
It is evident that the drafters of the Compendium gave the question of animal
authorship little consideration and no reasoned explanation to support their
9840675 - 25 -
conclusions. Indeed, the only legal test referenced by the Compendium is that
works must be original. Yet there is no doubt the Monkey Selfies are original.
Because the Compendium fails to explain how it reached its conclusion, it is not
entitled to any weight. See, e.g., Boyds Collection, Ltd. v. Bearington Collection,
Inc., 360 F. Supp. 2d 655, 66162 (M.D. Penn. 2005) (because letters from the
Copyright Office did not include a rationale or explanation for the agencys
construction of the statute, their value as persuasive authority, and the deference
owed to the agencys interpretation, is thus substantially limited).
Moreover, the Compendiums conclusion is inconsistent with the plain
language of the Copyright Act, the breadth with which it is interpreted, and the
constitutional purposes for which it was enacted. Thus, the Copyright Offices
baseless refusal to register animal-created works is entitled to no weight.
9840675 - 26 -
CONCLUSION
For these reasons, Plaintiff respectfully urges the Court to reverse the district
court and remand this case for further proceedings consistent with Narutos
standing to pursue a declaration of his rights under the Copyright Act.
IRELL & MANELLA LLP


Of Counsel:

General Counsel
PETA FOUNDATION
9840675 - 27 -
STATEMENT OF RELATED CASES
Pursuant to Circuit Rule 282.6, Plaintiff-Appellant states that no other
cases in this Court are deemed related.
IRELL & MANELLA LLP


Of Counsel:

General Counsel
PETA FOUNDATION
9840675 - 28 -
9th Circuit Case Number(s) 16-15469
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
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Case No. 16-15469
IN THE
United States Court of Appeals
for the Ninth Circuit
NARUTO, A CRESTED MACAQUE, BY AND THROUGH HIS NEXT FRIENDS,
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.,
PLAINTIFF-APPELLANT,
v.
DAVID JOHN SLATER, WILDLIFE PERSONALITIES, LTD.,

AND BLURB, INC.,
DEFENDANTS-APPELLEES,

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA IN CASE NO. 3:15-CV-04324,
U.S. DISTRICT JUDGE WILLIAM H. ORRICK III
BRIEF OF DEFENDANTS-APPELLEES DAVID JOHN SLATER

AND WILDLIFE PERSONALITIES, LTD.
ANDREW J. DHUEY
456 Boynton Avenue
Berkeley, California 94707
(510) 528-8200
Attorney for Defendants-Appellees,

David John Slater and
Wildlife Personalities, Ltd.
25 August 2016
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.2 of the Federal Rules of Appellate Procedure,
Defendant-Appellee Wildlife Personalities, Ltd., certifies that it is a private
corporation that has no affiliation with any other corporation. It has no
parent corporation, and no publicly-held corporation owns 10% or more of
its stock.
~i~
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ............................................... i
TABLE OF AUTHORITIES ......................................................................... iv
INTRODUCTION .......................................................................................... 1
STATEMENT OF JURISDICTION .............................................................. 2
COUNTERSTATEMENT OF THE ISSUES ................................................ 3
STATEMENT OF THE RELEVANT FACT ................................................ 3
SUMMARY OF ARGUMENT ...................................................................... 4
ARGUMENT:
I. The Court Should Affirm the District Courts Judgment of

Dismissal for Lack of Standing .. ............................................... 5
A. Non-human Animals Lack Standing to Sue for

Copyright Infringement... ................................................ 5
B. PETA Is Ineligible to Serve as Narutos Next

Friend... .......................................................................... 8
II. The Court Should Order PETA to Pay Slaters Attorney

Fees on Appeal.. ....................................................................... 11
A. The Court Should Address Slaters Request for Fees

on Appeal in Its Merits Decision... ................................ 11
B. Slater Is a Prevailing Party under Section 505........... 12
C. All of the Applicable Factors Favor Awarding Slater

Recovery of His Attorney Fees on Appeal... ................. 14
~ ii ~
1. Dismissal for Lack of Standing Gives Slater the

Greatest Degree of Success Possible ..................... 14
2. PETAs Legal Positions Are Objectively

Unreasonable and Its Appeal Is Frivolous ............. 15
3. PETAs Motives in Filing, Prosecuting and

Appealing This Action Were Improper. ................ 17
4. The Need for Deterrence and Compensation Favors

Awarding Slater His Attorney Fees on Appeal. .... 20
5. PETA Is Not an Impecunious Litigant................... 23
D. Attorney Fees under Section 505 May Be Awarded

Against Next Friend Litigants... ................................. 24
CONCLUSION ............................................................................................. 26
STATEMENT OF RELATED CASES ........................................................ 26
CERTIFICATE OF COMPLIANCE WITH WORD LIMIT ....................... 27
PROOF OF SERVICE .................................................................................. 28
~ iii ~
Page
CASES
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................... 3
Beer v. United States, 361 Fed. Appx. 150 (Fed. Cir. 2010) ........................ 22
Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012) ................................ 22
Berry v. Hawaiian Express Serv.,

2006 U.S. Dist. LEXIS 78281 (D. Haw. 2006) ............................................ 18
Bridgeport Music, Inc. v. WB Music Corp.,

520 F.3d 588 (6th Cir. 2008) ........................................................................ 21
Brittain v. Superior Court of Napa County,

1993 U.S. Dist. LEXIS 8861 (N.D. Cal. 1993) ............................................ 25
Cetacean Community v. Bush,

386 F.3d 1169 (9th Cir. 2004) ........................................ 5-8, 13, 15-19, 21-22
Citizens to End Animal Suffering & Exploitation, Inc. v.

New England Aquarium, 836 F. Supp. 45 (D. Mass. 1993) ........................... 5
Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002) .............. 9, 11, 17
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,

118 F.3d 245 (5th Cir. 1997) ........................................................................ 24
Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. 2003) ................ 14, 23
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) .................................. 15, 17-20
Fox v. Vice, 563 U.S. 826 (2011) ................................................................. 25
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)........................................ 9-10
Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2016) .............. 12, 14
~ iv ~
L.A. News Serv. v. Reuters TV Intl, Ltd., 149 F.3d 987 (9th Cir. 1998)...... 12
Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx. 705 (9th Cir. 2010) ..... 12
Maljack Prods. v. Goodtimes Home Video Corp.,

81 F.3d 881 (9th Cir. 1996) .................................................................... 12, 19
Massie ex rel. Kroll v. Woodford, 244 F.3d 1192 (9th Cir. 2001) ................. 9
Mattel, Inc. v. Walking Mt. Prods.,

2004 U.S. Dist. LEXIS 12469 (C.D. Cal. 2004) .......................................... 18
Minden Pictures, Inc. v. John Wiley & Sons, Inc.,

2014 U.S. Dist. LEXIS 60901 (N.D. Cal. 2014),
revd, 795 F.3d 997 (9th Cir. 2015) ................................................... 12-13, 15
Moody v. Smith (In re Moody), 105 B.R. 368 (Bankr. S.D. Tex. 1989) ...... 25
OToole v. Northrop Grumman Corp., 499 F.3d 1218 (10th Cir. 2007) ..... 24
Petri v. Kestrel Oil & Gas Props., L.P.,

2013 U.S. Dist. LEXIS 8695 (S.D. Tex. 2013) ............................................ 24
Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013) .......................... 13
Smith v. CMTA-IAM Pension Trust, 746 F.2d 587 (9th Cir. 1984).............. 12
T.W. by Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997) .................................. 10
Tilikum v. Sea World Parks & Entmt, Inc.,

842 F. Supp. 2d 1259 (S.D. Cal. 2012) .................................................. 17-20
Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980) ......................................... 12
PROVISIONS OF THE U.S. CONSTITUTION
Article III .......................................................................................... 10, 13, 22

Thirteenth Amendment ........................................................................... 17, 20
~v~
STATUTES
United States Code,

Title 5, Section 702............................................................................... 6
Title 16, Section 1532(13). ................................................................... 6
Title 16, Section 1540(g)(1)(A)............................................................ 8
Title 17, Section 101............................................................................. 7
Title 17, Section 201............................................................................. 7
Title 17, Section 203 ............................................................................ 7
Title 17, Section 203(a)(2)(A). ............................................................. 7
Title 17, Section 304............................................................................. 7
Title 17, Section 505....................................................... 3, 11-14, 25-26
ACTS OF CONGRESS
Administrative Procedures Act .............................................................. 5-7, 16

Copyright Act......................................................................... 1, 6-8, 13, 20, 25
Endangered Species Act .............................................................................. 5-8
Marine Mammal Protection Act ............................................................ 5-7, 16
National Environmental Protection Act................................................. 5-7, 16
RULES
Federal Rule of Appellate Procedure 35(c) ................................................. 21

Federal Rule of Appellate Procedure 35(e) .................................................. 22
Federal Rule of Appellate Procedure 38....................................................... 17
Federal Rule of Civil Procedure 11 .............................................................. 25
Ninth Circuit Rule 39.1-1.6 .......................................................................... 11
OTHER AUTHORITIES
Andrew Dhuey, The Great Haste and Less Milling of Beer v. United States,
Patently-O (Aug. 12, 2010), http://patentlyo.com/patent/2010/08/guest-post-
the-great-haste-and-less-milling-of-beer-v-united-states.html
(last visited Aug. 25, 2016)........................................................................... 22
Irell & Manella LLP, Irell Named to IP Hot List by National Law
Journal, June 2016, http://www.irell.com/news-item-470.html (last
visited Aug. 25, 2016)................................................................................... 19
~ vi ~
PETA, Financial Reports, 2015 Financial Statement,

http://www.peta.org/about-peta/learn-about-peta/financial-report/ (last
visited Aug. 25, 2016).............................................................................. 23-24
PETA, UPDATE: Monkey Selfie Case Brings Animal Rights Into Focus,
http://www.peta.org/blog/monkey-selfie-case-animal-rights-focus/, Jan. 6,
2016 (last visited Aug. 25, 2016).................................................................. 20
U.S. Chamber of Commerce Institute for Legal Reform, Lawsuit on

Behalf of Monkey Tops Poll of Years Most Ridiculous Lawsuits,
http://www.instituteforlegalreform.com/resource/lawsuit-on-behalf-of-
monkey-tops-poll-of-years-most-ridiculous-lawsuits (last visited Aug.
25, 2016) ......................................................................................................... 1
Wall Street Journal Law Blog, Leading Questions: A Chat with PETA
Lawyer Jeff Kerr, June 6, 2016,
http://blogs.wsj.com/law/2016/06/06/leading-questions-a-chat-with-peta-
lawyer-jeff-kerr/ (last visited Aug. 25, 2016) ............................................... 20
~ vii ~
INTRODUCTION
This case winner of the U.S. Chamber of Commerce Most
Ridiculous Lawsuit of 2015 award1 is poised to retain its title in 2016. Last
year, an animal rights organization, People for the Ethical Treatment of
Animals, Inc. (PETA), and a primatologist, Antje Engelhardt, Ph.D.,
walked into federal court, claimed to be a monkeys next friends and sued
for infringement of the monkeys claimed copyright. To no ones surprise,
the district court dismissed the case for lack of statutory standing.
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 monkeys sole next friend.
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. It is undisputed that Congress
never plainly said that non-human animals could have standing under the
Copyright Act. And even if Congress had taken that extraordinary step of
granting statutory standing to animals, separate Ninth Circuit precedent
1
U.S. Chamber of Commerce Institute for Legal Reform, Lawsuit on Behalf
of Monkey Tops Poll of Years Most Ridiculous Lawsuits,
http://www.instituteforlegalreform.com/resource/lawsuit-on-behalf-of-
monkey-tops-poll-of-years-most-ridiculous-lawsuits (last visited Aug. 25,
2016).
~1~
requires that a next friend of a litigant have a significant relationship with
the party it purports to represent.
There can be little serious debate that affirmance of the dismissal in
this case is required under two separate lines of controlling authority. The
only serious question on appeal is whether the Court should order PETA to
pay the attorney fees on appeal of Defendants-Appellees. It should. PETA
has unfairly and needlessly forced Defendants-Appellees to address legal
positions that are wholly unreasonable under current law.
If PETA had wanted to assert a good faith challenge to existing law, it
should have conceded that controlling authority required affirmance of the
district courts dismissal. Then PETA, with little expenditure of party or
judicial resources, could have filed a petition for en banc hearing, and
possibly a petition for certiorari at the Supreme Court. That candid and
forthright appellate approach would have been minimally burdensome to all
involved.
STATEMENT OF JURISDICTION
Defendants-Appellees David John Slater and Wildlife Personalities,
Ltd. (henceforth, Slater) agree with Plaintiff-Appellants jurisdictional
statement.
~2~
COUNTERSTATEMENT OF THE ISSUES
1. Whether a non-human animal can have statutory standing to sue for
copyright infringement.
2. Whether under 17 U.S.C. 505, this Court should award Defendants-
Appellees their reasonable attorney fees on appeal against Next Friend
People for the Ethical Treatment of Animals, Inc.
STATEMENT OF THE RELEVANT FACT
The only pertinent fact in this case is that Naruto is a monkey suing
for copyright infringement.
PETAs factual allegations reveal its misunderstanding of how the
Monkey Selfie photograph came to be, but those mistaken and immaterial
allegations must be accepted as true in PETAs appeal of the pleading-stage
dismissal. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the Court is
curious to know the true story of the world-famous Monkey Selfie, it is
available at Slaters website.2
Slater, an award-winning nature photographer, set up what became the
Monkey Selfie in the course of several grueling days in an Indonesian
jungle. Developing a keen understanding of their subjects is a critical skill
2
http://www.djsphotography.co.uk/original_story.html
~3~
for any professional photographer, and that was vital here for Slater as he
slowly built a trustful, friendly relationship with a group of crested macaque
monkeys. Only a talented human photographer could have made the artistic
choices involving camera lens width, positions and settings (e.g., predictive
autofocus, motorwind, and flashgun). PETA insults all professional
photographers with the suggestion that seeing your reflection in a lens and
pressing a shutter button by itself entitles one to a copyright for the
photograph, even when someone else made the critical artistic decisions that
resulted in a photographic work adored by millions worldwide.
SUMMARY OF ARGUMENT
The Court should affirm the dismissal for lack of standing because
Congress did not plainly say that non-human animals can have standing to
sue for copyright infringement. Additionally, the Court should affirm the
dismissal because PETA, the only remaining purported next friend of
Naruto, has alleged no relationship with him, as is required for next friend
eligibility.
Also, the Court should order PETA to pay Slaters appellate-stage
attorney fees, the amount thereof for the district to determine on remand.
PETAs positions are objectively unreasonable and its motivation in
prosecuting this action is improper. PETA should be deterred from bringing

~4~
such a frivolous action again, and Slater should be compensated for enduring
this case.
ARGUMENT
I. The Court Should Affirm the District Courts Judgment of

Dismissal for Lack of Standing.
A. Non-human Animals Lack Standing to Sue for Copyright

Infringement.
[I]f Congress and the President intended to take the extraordinary
step of authorizing animals as well as people and legal entities to sue, they
could, and should, have said so plainly. Cetacean Community v. Bush, 386
F.3d 1169, 1179 (9th Cir. 2004) (quoting Citizens to End Animal Suffering
& Exploitation, Inc. v. New England Aquarium, 836 F. Supp. 45, 49 (D.
Mass. 1993)). In Cetacean Community, this Court rejected the notion that
non-human animals could have standing under four Acts of Congress: the
Administrative Procedures Act (APA), the Endangered Species Act
(ESA), Marine Mammal Protection Act (MMPA), and the National
Environmental Protection Act (NEPA). 386 F.3d at 1176-79. None of the
four Acts expressly excluded non-human animals from having statutory
standing, but all four lacked the requisite plain statement indicating
legislative intent to take that extraordinary step in federal jurisprudence.
Id. at 1179.
~5~
The four statutes at issue in Cetacean Community differ on the
question of standing. The APA provides judicial relief for a person
suffering legal wrong because of agency action. Id. at 1176 (quoting 5
U.S.C. 702). The ESA grants standing to a person, which is defined to
include an individual. Id. at 1177 (quoting 16 U.S.C. 1532(13)). The
MMPA and NEPA contain no explicit grant of standing. Id. at 1178-79.
What they all have in common, though, is no explicit standing grant for non-
human animals, and thus the plaintiff cetaceans failed to satisfy the plain
statement standing requirement:
But, as with the ESA, these cases do not instruct us to expand

the basic definition of person beyond the definition provided
in the APA. . . . Absent a clear direction from Congress in
either the MMPA or the APA, we hold that animals do not have
standing to enforce the permit requirement of the MMPA. . . .
[W]e see nothing in either NEPA or the APA that would permit
us to hold that animals who are part of the environment have
standing to bring suit on their own behalf.
Id. at 1178-79 (emphasis added).
It is undisputed that Congress did not say plainly or give a clear
direction that non-human animals have standing to sue under the Copyright
Act. Indeed, much like with the ESA (see Cetacean Community, 386 F.3d at
1178-79), several provisions of the Copyright Act strongly indicate that an
individual author must be a human. The children of an author can
inherit certain rights, whether legitimate or not and that includes children
~6~
legally adopted by the author. See 17 U.S.C. 101, 201, 203 and 304. An
authors widow or widower owns the authors entire termination interest
unless there are any surviving children or grandchildren of the author, in
which case the widow or widower owns one-half of the authors interest.
203(a)(2)(A).
In sum, Cetacean Community set forth a straightforward test for non-
human animal statutory standing, and the Copyright Act fails that test. If
only all standing analyses were so easy.
At the district court, PETA argued that Cetacean Community involved
a different statute than the Copyright Act, and as such is distinguishable.
According to PETA, there is a critical difference between the ESA, which
defines person to include an individual, and the Copyright Act, which
does not define author. PETA Br. 11-12. PETA thus ignores how the APA
does not define person, and how the MMPA and NEPA do not even have
explicit grants of statutory standing. The terms person, individual and
author could possibly include non-human animals. But the standing
inquiry under Cetacean Community is not about possibilities; it is rather a
simple question of whether the applicable Act of Congress plainly and
clearly directs that non-human animals have standing to sue. Id. at 1179.
~7~
On appeal, PETA raises a new argument about Cetacean Community:
[T]he statutes at issue in Cetacean represented a waiver of the United
States sovereign immunity, and such waivers, unlike the Copyright Act, are
narrowly construed. PETA Br. 11. But the holding in Cetacean Community
is not at all based on or related to sovereign immunity or its waiver. Indeed,
nowhere in Cetacean Community did this Court ever mention sovereign
immunity or the canon of narrow construction for waivers of sovereign
immunity. Moreover, the citizen-suit provision of the ESA provides that a
person may commence a civil suit . . . to enjoin any person, including the
United States and any other governmental instrumentality or agency. 16
U.S.C. 1540(g)(1)(A). It would be a strange interpretive result if the
definition of the person entitled to sue under the ESA were construed
broadly or narrowly, depending on whether the defendant is a public entity.
Indeed, if PETA is right about this Courts sub silentio holding in Cetacean
Community, a plaintiff could be a person and not a person in the same
ESA case with both public and private defendants.
B. PETA Is Ineligible to Serve as Narutos Next Friend.
In order to establish next-friend standing, the putative next friend
must show: (1) that the petitioner is unable to litigate his own cause due to
mental incapacity, lack of access to court, or other similar disability; and (2)
~8~
the next friend has some significant relationship with, and is truly dedicated
to the best interests of, the petitioner. Coalition of Clergy v. Bush, 310 F.3d
1153, 1159-60 (9th Cir. 2002) (quoting Massie ex rel. Kroll v. Woodford,
244 F.3d 1192, 1194 (9th Cir. 2001)) (emphasis added).
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.3 This Court granted Dr. Engelhardts motion, thus leaving
PETA as Narutos lone putative next friend.4
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
3
Docket entry no. 10, May 4, 2016.
4
Docket entry no. 14, May 18, 2016.
~9~
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. See ER 21-23. PETA alleges,
essentially, that it is an animal rights advocacy organization: PETA is the
largest animal rights organization in the world and operates, in part, under
the principle that, as sentient beings, animals have rights that are or should
be recognized in law and protected by courts. ER 23. PETA alleges no
connection to Naruto, an Indonesian monkey who lives roughly 10,000
miles from PETAs headquarters in Virginia.
[A]llowing a complete stranger to bring suit in their name as

their next friend because they cannot sue on their own behalf
would not violate Article III. But it might well offend the policy
behind the requirement of standing, which is to confine the
right to initiate and control federal court litigation to persons
who have a concrete stake, rather than merely an ideological
interest passionate and motivating as such interests can be
in the litigation. Without such a limitation, not only would the
federal courts be flooded by cause suits (really flooded), but
people who did have concrete stakes in a litigation would often
be thrust aside by the ideologues.
T.W. by Enk v. Brophy, 124 F.3d 893, 896 (7th Cir. 1997) (citations
omitted).
However passionate PETA may be about establishing monkey
standing for copyright infringement suits, that passion is not a significant
~ 10 ~
relationship with Naruto under Coalition of Clergy v. Bush. If it were, then
hundreds and perhaps thousands of animal charities would be eligible next
friends of Naruto, qualified to bring suit on his behalf.
II. The Court Should Order PETA to Pay Slaters Attorney Fees on
Appeal.
Slater requests that should the Court affirm the judgment of dismissal,
the Court also award him his attorney fees on appeal under 17 U.S.C. 505.
Slaters attorney fees on appeal should be awarded against PETA, the party
responsible for this appeal.
A. The Court Should Address Slaters Request for Fees on

Appeal in Its Merits Decision.
By stipulation, the parties have deferred the question of trial court-
stage attorney fees until the resolution of this appeal. ER 8. It would thus be
judicially efficient to award Slater his fees on appeal, but remand for the
district court the determination of the amount of those fees. The district court
can then determine the amount at the same time that it considers Slaters
motion for fees incurred in district court proceedings.
The Court has discretion to defer the question of fees on appeal to the
post-decision procedure set forth in Ninth Circuit Rule 39.1-1.6, but Slater
respectfully submits that addressing his request in the merits opinion would
~ 11 ~
be more judicially efficient. Unlike cases where statutes or contractual
provisions automatically entitle a prevailing party to attorney fees, Section
505 fee determinations are discretionary. An important factor in the
Courts exercise of that discretion is the objective reasonableness of the
losing partys legal positions. Kirtsaeng v. John Wiley & Sons, Inc., 136 S.
Ct. 1979, 1988 (2016). Given the obvious unreasonableness of PETAs
positions, this case is well-suited for consideration of an appellate-level fee
award in a consolidated single opinion. Often the Court has taken this
approach and awarded fees on appeal in merits opinions of cases, leaving the
amount of the fee award to the district courts determination on remand.5
B. Slater Is a Prevailing Party under Section 505.
The Copyright Act permits courts to award a reasonable attorneys
fee to the prevailing party as part of the costs. 17 U.S.C. 505. In Minden
Pictures, Inc. v. John Wiley & Sons, Inc., 2014 U.S. Dist. LEXIS 60901
(N.D. Cal. 2014), the district court considered whether a defendant who wins
5
See, e.g., Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 714 (9th
Cir. 2010) (fees on appeal awarded to prevailing copyright case litigant
under 505; determination of amount for the district court on remand); L.A.
News Serv. v. Reuters TV Intl, Ltd., 149 F.3d 987, 997 (9th Cir. 1998)
(same); Maljack Prods. v. Goodtimes Home Video Corp., 81 F.3d 881, 890-
91 (9th Cir. 1996) (same); Smith v. CMTA-IAM Pension Trust, 746 F.2d
587, 588-91 (9th Cir. 1984) (same in ERISA case); Williams v. Alioto, 625
F.2d 845, 850 (9th Cir. 1980) (same in civil rights action).
~ 12 ~
a dismissal for lack of standing is a prevailing party eligible for a fee
award under Section 505. After a thorough review of applicable Ninth
Circuit and Supreme Court authorities, including Cetacean Community, the
district court concluded that because a dismissal for lack of statutory
standing does not implicate a courts subject matter jurisdiction, it has the
power to award attorney fees to the prevailing party under Section 505. Id. at
*7-20. This Court reversed the district court on the merits in Minden
Pictures, but without comment on the fees issue, which became moot after
the reversal. 795 F.3d 997 (9th Cir. 2015).
This case presents the Court with an opportunity to clarify that a
defendant who obtains a dismissal for lack of statutory standing is a
prevailing party for purposes of a fee-shifting statute. Righthaven LLC v.
Hoehn, 716 F.3d 1166, 1172 (9th Cir. 2013) is not to the contrary, and even
if it were, it would conflict with earlier Ninth Circuit precedents and a later
Supreme Court decision. See Minden Pictures, 2014 U.S. Dist. LEXIS
60901 at *10-12, *17-18. Under Cetacean Community, Article III does not
preclude constitutional standing for a monkey or any other non-human
animal in federal court. 386 F.3d at 1175. Naturo lacks only statutory
standing under the Copyright Act, and thus this Court has subject matter
~ 13 ~
jurisdiction over his claim of infringement, and it has discretion to award
Slater his attorney fees under Section 505.
C. All of the Applicable Factors Favor Awarding Slater

Recovery of His Attorney Fees on Appeal.
In deciding whether to award fees, the Court should consider, among
other things: the degree of success obtained on the claim; frivolousness and
the objective reasonableness of the losing partys positions; the losing
partys motivation and the need for compensation and deterrence. Kirtsaeng,
136 S. Ct. at 1985. Courts in the Ninth Circuit also consider whether the
chilling effect of attorneys fees may be too great or impose an inequitable
burden on an impecunious plaintiff. Ets-Hokin v. Skyy Spirits, Inc., 323
F.3d 763, 766 (9th Cir. 2003). All of these factors favor granting Slater his
attorney fees on appeal.
1. Dismissal for Lack of Standing Gives Slater the Greatest

Degree of Success Possible.
Should the Court affirm the district courts dismissal on the ground
that non-human animals lack statutory standing to sue for copyright
infringement, Slater will have achieved the greatest degree of success
possible in this litigation. Unlike cases where a lack of standing dismissal
left open the possibility that the defendant would face an infringement suit
~ 14 ~
by another party,6 affirmance here would mean that no monkey and no
purported next friend of a monkey could ever have standing to sue Slater
for copyright infringement of the Monkey Selfie, or any of Slaters other
photographs.
2. PETAs Legal Positions Are Objectively Unreasonable and

Its Appeal Is Frivolous.
Each of PETAs positions on appeal is objectively unreasonable under
Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, n. 19 (1994). Taken together,
PETAs arguments and omissions render its appeal frivolous.
Non-human animal statutory standing under Cetacean Community
could not be simpler: if an Act of Congress plainly states that non-humans
can have standing, they can; if not, they cannot have standing. 386 F.3d at
1179. That is exactly how the district court understood this Courts holding
in Cetacean Community. ER 15-16. Nonetheless, PETA omits in its appeal
any discussion of the plain statement standing requirement of Cetacean
Community.
6
See, e.g., Minden Pictures, Inc. v. John Wiley & Sons, Inc., 2014 U.S. Dist.
LEXIS 60901 at *20-21 (N.D. Cal. 2014) (degree of success for publisher
that won dismissal for lack of standing mitigated by fact that it remained
subject to suit by individual photographers), revd on other grounds, 795
F.3d 997 (9th Cir. 2015).
~ 15 ~
Instead of addressing the express holding in Cetacean Community,
PETA attempts to limit its reach to cases where sovereign immunity is at
issue. PETA Br. 11. But this Court never even mentioned sovereign
immunity in Cetacean Community; nor did it say or imply that it was
construing statutory language narrowly. It is unreasonable to argue that
binding precedent can be disregarded based on a doctrine and on a canon of
construction never discussed in the applicable decision.
Moreover, PETAs claim that the statutes at issue in Cetacean
actually define who has standing is patently false with regard to two of the
Acts of Congress at issue: the MMPA and the NEPA. As is true of the
MMPA, no provision of NEPA explicitly grants any person or entity
standing to enforce the statute, but judicial enforcement of NEPA rights is
available through the APA. 386 F.3d at 1179 (citation omitted). PETA
asserts a contrast in that the Copyright Act makes no attempt to define
those who have standing. PETA Br. 12. But there is no contrast whatsoever
on that point between the Copyright Act on the one hand, and the MMPA
and NEPA on the other.
PETA compounds the frivolity of this appeal by maintaining it even
after Dr. Engelhardt has withdrawn from the case. In its principal brief,
PETA makes no mention of Dr. Engelhardts withdrawal, nor does it address
~ 16 ~
the resulting next friend standing problem. PETA has not alleged a
significant relationship with Naruto as is required under Coalition of
Clergy v. Bush. In fact, PETA alleges no relationship with Naruto at all.
Given PETAs inability to make any reasonable arguments for why
two separate lines of controlling Ninth Circuit authority do not require
affirmance, PETAs appeal does not satisfy the requirement of Federal Rule
of Appellate Procedure 38 (frivolous appeal). PETAs positions fall well
below the more demanding standard of objective reasonableness under
Fogerty.
3. PETAs Motives in Filing, Prosecuting and Appealing This

Action Were Improper.
Indications of PETAs improper motive in filing, prosecuting and
appealing this case include: i) PETAs pre-filing familiarity with Cetacean
Community, ii) PETAs access to sophisticated counsel and iii) PETAs
celebratory press release on its website accompanied by a request for
donations.
In 2011, PETA filed suit as next friends of five orcas held by
[SeaWorld] in violation of Section One of the Thirteenth Amendment to the
Constitution of the United States, which prohibits slavery and involuntary
servitude. Tilikum v. Sea World Parks & Entmt, Inc., 842 F. Supp. 2d
~ 17 ~
1259, 1260 (S.D. Cal. 2012) (quoting complaint). PETA resisted SeaWorlds
motion to dismiss by citing, among other cases, Cetacean Community.7
The Tilikum court agreed with PETA that Cetacean Community was a
relevant precedent, but one that supported SeaWorlds arguments for
dismissal:
The court notes that while [a]nimals have many legal rights,
protected under both federal and state laws which provide for
the humane treatment and criminalizing cruelty to animals, only
human beings have standing to bring such actions. . . . It is
obvious that an animal cannot function as a plaintiff in the same
manner as a juridically competent human being.
842 F. Supp. 2d at 1262, n. 1 (quoting Cetacean Community, 386 F.3d at
1175-76).
Courts in this circuit analyzing the motivation factor of Fogerty have
considered whether a losing party had access to counsel who could warn
them that they were asserting an objectively unreasonable position.8 Here,
7
ECF 3:11-cv-02476, Dkt. no. 14, p. 21 (S.D. Cal. filed Jan. 13, 2012).
8
See, e.g., Berry v. Hawaiian Express Serv., 2006 U.S. Dist. LEXIS 78281
at *28 (D. Haw. 2006) (This Court also finds that Plaintiffs pursuit of
claims against Guidance, in spite of notice that its copying constituted fair
use, is a strong indication that he had an improper motivation. Plaintiff had
access to counsel who could have easily determined that such claims were
without legal and factual basis.); Mattel, Inc. v. Walking Mt. Prods., 2004
U.S. Dist. LEXIS 12469 at *7 (C.D. Cal. 2004) (Plaintiffs conduct also
does not appear to be motivated by the protection of a valid interest. Plaintiff
had access to sophisticated counsel who could have determined that such a
suit was objectively unreasonable and frivolous.).
~ 18 ~
the same PETA in-house counsel who appeared in Tilikum are also counsel
in this case.9 PETAs outside counsel in this action are indisputably
sophisticated in the field of intellectual property.10 PETAs counsel could
and should have determined that it was objectively unreasonable to assert
that Cetacean Community left open the possibility of non-human animal
standing under an Act of Congress that does not plainly say that non-human
animals have standing.
After the district court hearing where Judge Orrick indicated his
intention to dismiss this action for lack of standing, PETA explained how,
from its perspective, it wins even while it loses.11 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
9
Compare 842 F. Supp. 2d at 1259 (counsel list) with ER 19 (complaint
cover).
10
See Irell & Manella LLP, Irell Named to IP Hot List by National Law
Journal, June 2016, http://www.irell.com/news-item-470.html (last visited
Aug. 25, 2016).
11
With regard to the Fogerty motivation factor, the Court may consider
statements of PETAs general counsel made outside of the evidentiary
record where the authenticity of the statements is not in doubt. See Maljack
Prods. v. Goodtimes Home Video Corp., 81 F.3d 881, 889, n. 12 (9th Cir.
1996) (The district court did not err in considering [unauthenticated internal
corporate] documents as indicators of MPIs motivation, however; MPI
produced the documents to GoodTimes, many of the documents were on
MPI letterhead and MPI does not contest their authenticity.).
~ 19 ~
of property . . . rather than a mere piece of property himself, said PETAs
general counsel.12 At the bottom of this quoted press release on PETAs
website, readers were invited to click the Donate Now button. Id.
Similarly, PETAs general counsel recently explained how PETA
won while losing in Tilikum: [W]e were trying to break barriers when we
sued SeaWorld, claiming under the 13th Amendment that five orcas were
enslaved. The judge wasnt willing to make that step, but just being in the
courtroom arguing that case was a victory.13
Asserting objectively unreasonable legal positions for the purpose of
making legal history indicates an improper motive under Fogerty. Such
litigation conduct suggests that PETA saw pursuing this surefire loser of a
case for copyright infringement as a means to gain publicity and donations.
That is inconsistent with the purposes of the Copyright Act.
4. The Need for Deterrence and Compensation Favors

Awarding Slater His Attorney Fees on Appeal.
12
PETA, UPDATE: Monkey Selfie Case Brings Animal Rights Into
Focus, http://www.peta.org/blog/monkey-selfie-case-animal-rights-focus/,
Jan. 6, 2016 (last visited Aug. 25, 2016).
13
Wall Street Journal Law Blog, Leading Questions: A Chat with PETA
Lawyer Jeff Kerr, June 6, 2016,
http://blogs.wsj.com/law/2016/06/06/leading-questions-a-chat-with-peta-
lawyer-jeff-kerr/ (last visited Aug. 25, 2016).
~ 20 ~
Courts should deter copyright plaintiffs from irresponsibly pressing
legal positions that clearly conflict with controlling precedent. Doing so is
wasteful of the courts and the parties resources. See Bridgeport Music, Inc.
v. WB Music Corp., 520 F.3d 588, 595 (6th Cir. 2008) ([I]t was not an
abuse of discretion for the district court to award fees and costs against the
company in the hope of motivating it to litigate in a more responsible,
realistic manner and to deter it from continuing to engage in questionable
litigation tactics.).
Here, it was irresponsible of PETA to contend that Cetacean
Community does not require dismissal for lack of standing, and to maintain
its appeal even after Dr. Engelhardt withdrew from the case. A realistic,
responsible approach for PETA would have been to concede from the start
that Cetacean Community requires dismissal of this case for lack of
standing. After a stipulated judgment at the district court, PETA could then
have presented its non-human animal standing argument to the active
members of this Court in a petition for initial hearing en banc (a proceeding
where Cetacean Community does not bind the judges). Fed. R. App. P.
35(c). That would have imposed little burden on the district court, this Court
or the defendants. No defendant would have even been permitted to file a
~ 21 ~
response to PETAs petition unless the Court had requested one. Fed. R.
App. P. 35(e).
A group of then-current and retired Article III judges modeled the
responsible way to challenge controlling precedent when they sued for
recovery of back pay. Beer v. United States, 361 Fed. Appx. 150 (Fed. Cir.
2010).14 At the Court of Federal Claims, the judges conceded that binding
Federal Circuit precedent required dismissal of their action. Id. at 151. At the
Federal Circuit, the judges filed a petition for initial hearing en banc, directly
challenging the binding precedent. Id. Should that petition be denied, the
judges acknowledged, affirmance of the dismissal would be required. Id. at
151-52. After an appellate journey that included a trip to the Supreme Court,
the judges prevailed. 696 F.3d 1174 (Fed. Cir. 2012). Throughout the
litigation, the judges were careful never to waste judicial or governmental
resources by pressing a legal position that was clearly untenable under the
controlling precedent they were challenging.
Giving PETAs appeal a most generous interpretation, it is at best an
attempt to overturn or at least limit the reach of the categorical holding in
Cetacean Community. Fair enough that is something for the Court to
14
See Andrew Dhuey, The Great Haste and Less Milling of Beer v. United
States, Patently-O (Aug. 12, 2010),
http://patentlyo.com/patent/2010/08/guest-post-the-great-haste-and-less-
milling-of-beer-v-united-states.html
~ 22 ~
consider upon the filing of an en banc petition. But even with this generous
interpretation, it was and is unfair for PETA to force the district court, a
three-judge panel of this Court and the defendants to address legal positions
that are unreasonable under controlling Ninth Circuit authority. Awarding
Slater his fees on appeal would fairly compensate him for the enduring what
PETA unnecessarily forced him to endure. It would also deter PETA and
similarly-situated parties from engaging in irresponsible litigation conduct in
other cases.
5. PETA Is Not an Impecunious Litigant.
An attorney fees award against PETA would not have a chilling
effect . . . or impose an inequitable burden on an impecunious plaintiff. Ets-
Hokin, 323 F.3d at 766 (citation omitted). PETA alleged in the complaint
that it has the financial and operational resources and the professional
expertise to administer and protect Narutos copyright in the Monkey
Selfies. ER 23. Indeed, PETA reports its considerable financial resources
on its website: Total [2015] Revenues $44,923,150. . . . Net Assets End of
~ 23 ~
[2015] $16,482,262.15 PETA could easily afford to satisfy an attorney fees
award in this case.
D. Attorney Fees under Section 505 May Be Awarded Against

Next Friend Litigants.
PETAs status as a purported next friend of Naturo, rather than as a
named plaintiff, has no bearing on whether it should bear liability for
Slaters attorney fees. Courts have taxed costs against next friends of
losing party plaintiffs, despite contentions that their representational status
should insulate them from liability.16 Likewise, courts have imposed and
15
PETA, Financial Reports, 2015 Financial Statement,
http://www.peta.org/about-peta/learn-about-peta/financial-report/ (last
visited Aug. 25, 2016); see OToole v. Northrop Grumman Corp., 499 F.3d
1218, 1224-25 (10th Cir. 2007) (abuse of discretion for district court not to
take judicial notice of financial data on defendants website, the accuracy of
which defendant did not dispute).
16
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 256 (5th
Cir. 1997); Petri v. Kestrel Oil & Gas Props., L.P., 2013 U.S. Dist. LEXIS
8695 at *18-22 (S.D. Tex. 2013) (Here Petri has not cited any authority for
not following the law regarding taxing costs against the losing party because
it was a next friend nor precedent within this Circuit for equitable
exceptions.).
~ 24 ~
threatened attorney fees sanctions against next friends under Federal Rule
of Civil Procedure 11.17
Slater is unaware of any case where a court considered whether to
award attorney fees against a next friend pursuant to a fee-shifting statute.
Perhaps this is because the typical case in which a next friend appears is
on behalf of a relative who is the named plaintiff in a civil rights action. The
fee-shifting statute in federal civil rights cases allows a defendant to
recover reasonable attorneys fees incurred because of, but only because of,
a frivolous claim. Fox v. Vice, 563 U.S. 826, 836 (2011). Given that other
rules provide attorney fee sanctions against litigants who prosecute frivolous
claims, there will seldom be reason for federal courts to consider awarding
fees under a fee-shifting statute against a next friend litigant.
Still, this is the exceptional case (in so many ways). It would greatly
frustrate the purposes of the Copyright Act if putative next friends could
shield themselves from liability under Section 505 simply because they are
not the named plaintiff. There could be cases such as this one where all of
the applicable factors favor awarding fees to the prevailing party. What cold
17
Moody v. Smith (In re Moody), 105 B.R. 368, 372 (Bankr. S.D. Tex. 1989)
(The violations by Ms. Youngs discussed above are not overcome by her
argument that she is the next friend of the Debtor.); Brittain v. Superior
Court of Napa County, 1993 U.S. Dist. LEXIS 8861 at *18-19 (N.D. Cal.
1993).
~ 25 ~
comfort it would be for a prevailing defendant to win a fee award that is
enforceable against a judgment-proof named plaintiff, but not the party
solely responsible for filing and prosecuting the action. Nothing in Section
505 suggests that Congress meant to permit that unjust result.
CONCLUSION
The Court should affirm the judgment of dismissal for lack of
statutory standing. The Court should also award Slater his attorney fees on
appeal against PETA, the amount thereof to be determined by the district
court on remand.
Respectfully submitted,
/s/ ANDREW J. DHUEY

Attorney for Defendants-Appellees,
DAVID JOHN SLATER and
WILDLIFE PERSONALITIES, LTD.
STATEMENT OF RELATED CASES
Slater is unaware of any related cases.
~ 26 ~
X 5,541
X
Microsoft Word 2010
14-point Times New Roman
/s/ Andrew J. Dhuey
Defendants-Appellees David John Slater and WLP, Ltd.
25 August 2016
~ 27 ~
16-15469
25 August 2016
/s/ Andrew J. Dhuey
~ 28 ~
Docket No. 1615469

____________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
____________________________________
NARUTO, by and through his Next Friend,
Plaintiff-Appellant,
v.
DAVID J. SLATER, et al.,
Defendants-Appellees.
____________________________________
On Appeal from the United States District Court

for the Northern District of California
Case No. 3:15-cv-04324 (Orrick, J.)
____________________________________
REPLY BRIEF OF PLAINTIFFAPPELLANT

____________________________________
IRELL & MANELLA LLP

David A. Schwarz (Cal. Bar. No. 159376)
1800 Avenue of the Stars, Suite 900
Los Angeles, California 900674276
Telephone: (310) 2771010
Facsimile: (310) 2037199
dschwarz@irell.com
Attorneys for Plaintiff-Appellant Naruto
10006722
TABLE OF CONTENTS
A. THE ACT DOES NOT LIMIT STANDING TO HUMANS ................ 1
B. THIS CASE RAISES AN ISSUE OF FIRST IMPRESSION ............... 6
1. Cetacean does not control. ........................................................... 6
2. The Compendium does not control. ............................................. 8
C. PETA HAS STANDING AS NARUTOS NEXT FRIEND ............... 10
D. DEFENDANT SLATERS REQUEST FOR ATTORNEYS FEES

IS PREMATURE.................................................................................. 13
10006722 i
Cases
Bleistein v. Donaldson Lithographing Co.,

188 U.S. 239 (1903) .............................................................................................. 9
Burrow-Giles Lithographic Co. v. Sarony,

111 U.S. 53 (1884) ............................................................................................ 8, 9
Cervantes v. Countrywide Home Loans, Inc.,

656 F.3d 1034 (9th Cir. 2011) ............................................................................ 12
Cetacean Community v. Bush,

386 F.3d 1169 (9th Cir. 2004) ..................................................................5, 6, 7, 8
Christensen v. Harris County,

529 U.S. 576 (2000) .............................................................................................. 8
Cmty. for Creative Non-Violence v. Reid,

490 U.S. 730 (1989) .............................................................................................. 3
Coal. of Clergy, Lawyers, & Professors v. Bush,

310 F.3d 1153 (9th Cir. 2002) ............................................................................ 11
Coos Cty. Bd. of Cty. Comm'rs v. Kempthorne,

531 F.3d 792 (9th Cir. 2008) ................................................................................ 8
Ets-Hokin v. Skyy Spirits, Inc.,

225 F.3d 1068 (9th Cir. 2000) ............................................................................ 10
Goldstein v. California,
412 U.S. 546 (1973) .............................................................................................. 2
Lahr v. Natl Transp. Safety Bd.,

569 F.3d 964 (9th Cir. 2009) ........................................................................10, 11
Lanard Toys, Ltd. v. Novelty, Inc.,

375 F. Appx 705 (9th Cir. 2010) ....................................................................... 14
Lehman v. Lycoming County Childrens Servs. Agency,

458 U.S. 502 (1982) ............................................................................................ 12
10006722 - ii -
Quality King Distribs., Inc. v. LAnza Research Intl, Inc.,

523 U.S. 135 (1998) .............................................................................................. 3
Silvers v. Sony Pictures Entmt, Inc.,

402 F.3d 881 (9th Cir.), cert. denied, 546 U.S. 827 (2005) ................................. 1
Summers v. Interstate Tractor & Equip. Co.,

466 F.2d 42 (9th Cir. 1972) ................................................................................ 11
U.S. Auto Parts Network, Inc. v. Parts Geek, LLC,

692 F.3d 1009 (9th Cir. 2012) .............................................................................. 2
U.S. v. 30.64 Acres of Land,

795 F.2d 796 (9th Cir. 1986) .............................................................................. 11
Urantia Foundation v. Maaherra,

114 F.3d 955 (9th Cir. 1997) ......................................................................6, 9, 10
Whitmore v. Arkansas,
495 U.S. 149 (1990) ............................................................................................ 12
Statutes
17 U.S.C. 101 .......................................................................................................... 4
17 U.S.C. 201 .......................................................................................................... 1
17 U.S.C. 203 .......................................................................................................... 5
17 U.S.C. 304 .......................................................................................................... 4
17 U.S.C. 501 ..................................................................................................1, 2, 3
Other Authorities
Ninth Cir. Rule 391.6 ............................................................................................. 13
Fed. R. Civ. P. 9 ....................................................................................................... 10
Fed. R. Civ. P. 17(c)................................................................................................. 12
10006722 - iii -
Defendants cannot dispute that this case raises an issue of first impression:
Whether human authorship is a prerequisite for protection under the Copyright Act
(the Act) has never been addressed before this case. Throughout their answering
briefs, defendants observe that the Act does not expressly mention animals or
animal-created works. Yet neither does it exclude animals or animal-created
works. Nothing in the Act limits standing to humans alone, and both the Acts
legislative history and prior case law have repeatedly stated that the Act should be
construed broadly. The answering briefs offer nothing to the contrary.
A. THE ACT DOES NOT LIMIT STANDING TO HUMANS
Defendants offer a tortured reading of the Act to attempt to find a statutory
limitation on standing even though Congress never created one. The Act
specifically grants standing to the copyright owner. 17 U.S.C. 501(b); Silvers
v. Sony Pictures Entmt, Inc., 402 F.3d 881, 884 (9th Cir.), cert. denied, 546 U.S.
827 (2005) (To be entitled to sue for copyright infringement, the plaintiff must be
the legal or beneficial owner of an exclusive right under a copyright.). Nowhere
does the Act require an owner to be human. Rather, the statute only requires the
plaintiff to be the the author or authors of the work. 17 U.S.C. 201(a).
Moreover, the threshold for authorship is very low. The Supreme Court has
repeatedly held that the concept of author should have the broadest possible
meaning: While an author may be viewed as an individual who writes an
10006722 1
original composition, the term, in its constitutional sense, has been construed to
mean an originator, he to whom anything owes its origin. Goldstein v.
California, 412 U.S. 546, 561 (1973) (quoting Burrow-Giles Lithographic Co. v.
Sarony, 111 U.S. 53, 58 (1884) (Sarony). Generally, the author is simply the
creator of the copyrighted work. U.S. Auto Parts Network, Inc. v. Parts Geek,
LLC, 692 F.3d 1009, 1015 (9th Cir. 2012). Here, Naruto has sufficiently alleged
that he created the Monkey Selfies. Nothing more is required.1
Defendant Blurb argues that the notification provisions of section 501(b)
which grants standing to copyright plaintiffsindicates that Congress intended to
somehow limit the definition of owner to human beings. Not so. The first
sentence of section 501(b) is unambiguous: The legal or beneficial owner of an
exclusive right under a copyright is entitled to institute an action for any
infringement of that particular right committed while he or she is the owner of it.
Nowhere in that provision is a requirement that the legal or beneficial owner of a
copyright be a human being. All that is required for standing is ownership.
However, Defendants attempt to misread the second sentence of section
501(b) as somehow limiting the scope of the first sentence. The second sentence
reads: The court may require such owner to serve written notice of the action
1
In their papers, defendants call into question the veracity of Narutos claim that
he created the Monkey Selfies without human intervention. However, on a motion
to dismiss, the Court must deem Narutos allegations at true.
10006722 -2-
with a copy of the complaint upon any person shown, by records of the Copyright
Office or otherwise, to have or claim to an interest in the copyright . Id. Yet,
again, it is unambiguous that the reference to person in the notification provision
is distinct from the reference to owner. Indeed, the statute contemplates that the
person receiving notification of the suit is a third-party to the proceeding
someone entirely distinct from the owner. Thus, the notification provision in no
way indicates congressional intent to limit authorship to humans.
Moreover, the Acts use of the word person is not limited to human
beings. Federal courts routinely recognize that corporations are authors and have
copyright standing. See, e.g., Quality King Distribs., Inc. v. LAnza Research Intl,
Inc., 523 U.S. 135, 138 (1998). Yet corporations are not referenced anywhere in
section 501(b). Indeed, the Supreme Court has gone even further and has
recognized that unincorporated associations have copyright standing. See Cmty.
for Creative Non-Violence v. Reid, 490 U.S. 730, 733 (1989) (author was
nonprofit unincorporated association dedicated to eliminating homelessness). In
other words, being a legal entity is not a prerequisite for standing. See id. Yet
nowhere in the Act is there an explicit reference to unincorporated associations,
much like there is no reference to animals.
Given the unassailable proposition that corporations have standing,
defendants reason that the Act must specifically call out that term. But the Acts
10006722 -3-
only usage of the term corporation occurs when it defines a performing rights
society and the proprietor of an establishment or a food service or drinking
establishment. 17 U.S.C. 101. Neither of these definitions has any relation to
the instant case.
Defendants settle for the next best thing they could find in the Acts text,
namely a reference to corporate bodies. But that reference also occurs in an
unrelated context: The 1976 Act combines two features, a New Act governing
works created from January 1, 1978 onwards plus Transitional Provisions
applicable to works created through December 31, 1977. The latter had to specify
the disposition of works by corporate bodies, given that previous law called out
that category. See 17 U.S.C. 24 (repealed 1909 Act). But the former contains no
pertinent reference to corporations. In other words, the New Act never uses the
term corporations as potential authors, even though courts routinely grant
corporations standing to sue in their capacity as authors. Parallel logic indicates
that the absence of any statutory reference to animals in the New Act is as
insignificant as its omission of corporations.
Defendants also question whether anonymous works can be registered on
behalf of animals. The Act defines an anonymous work as a work on the copies
or phonorecords of which no natural person is identified as author. 17 U.S.C.
101. In other words, an anonymous work is an unsigned work. Defendants
10006722 -4-
misread this definition to require that anonymous works are only those for which a
natural person is the author, albeit unidentified. This reading would exclude,
however, anonymous works created by authors other than natural persons, such as
corporations and unincorporated associations. No court has ever defined
anonymous works so narrowly. Rather, the plain understanding of the definition
is simply a work where an author has not been identified.
Finally, defendants argue that the Act employs human terms by providing
for the transfer of copyrights to the children and widows of an author. See 17
U.S.C. 101, 203, and 304. Providing for inheritance rights falls well short of an
inference restricting standing to humans only. For example, identifying the widow
or children of an anonymous author would be as difficult as it would be for Naruto.
In addition, by recognizing that corporations can be authors, the Act makes it clear
that neither marriage, procreation, nor even being human is a precondition for
standing. No one would argue that an unmarried, childless human cannot be an
author, even though that human wouldlike Narutonever leave behind a
widow or widower. Defendants further ask the Court to speculate as to how the
rights of an animal author are inherited under the statute. But those questions are
not currently before the Court. The sole question is whether Naruto is an author.
10006722 -5-
B. THIS CASE RAISES AN ISSUE OF FIRST IMPRESSION
Defendants dispute that this is a case of first impression. First, they
incorrectly contend that the issue was decided in Cetacean Community v. Bush,
386 F.3d 1169, 1175 (9th Cir. 2004) (Cetacean), which addressed whether animals
have standing under the Endangered Species Act and related statutes. As
explained below, the Act differs from the ESA in fundamental ways. Second,
defendants argue that this Court should be bound by the Compendium of the U.S.
Copyright Offices Practices (Compendium), which states that animal-created
works cannot be registered. However, the Compendium does not explain its
reasoning and is not binding on this Court. Indeed, in the one case where the Ninth
Circuit has considered the relevant portions of the Compendium, it rejected its
analysis. See Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997).
1. Cetacean does not control.
Cetacean addressed whether animals have independent standing to sue under
the Endangered Species Act (ESA), the Marine Mammal Protection Act
(MMPA) and the National Environmental Policy Act (NEPA). However, the
Courts conclusion in Cetacean is not binding here, as Cetacean addressed a
statutory scheme substantially different from the Act.
First, Cetacean held that animals lacked standing under the ESA because the
ESA contains an explicit provision granting standing to enforce the duties created
10006722 -6-
by the statute that is limited to a person, expressly defined as an individual,
corporation, partnership, trust, association, or another private entity . Id. at
1177. In sum, the statute excluded animals from its definition of standing. See id.
Second, Cetacean noted that neither the MMPA nor the NEPA creates an
independent private right of action. Id. at 177879. In other words, neither statute
by itself creates standing to sue. However, both statutes are enforceable under the
Administrative Procedures Act (APA). Thus, whether animals have standing to
enforce either the MMPA or the NEPA depends on whether they have standing
under the APA. Cetacean concluded they do not, however, because, like the ESA,
the APA specifically limits standing to a person. Id. at 1178 (Section 10(a) of
the APA does not define person to include animals.).
Thus, all of the claims at issue in Cetacean arose from statutory schemes
that expressly limit standing to persons. This stands in stark contrast to the Act,
which broadly grants standing to all copyright owners, with no attempt made to
limit the definition of owner. Indeed, it is impossible to apply the logic of
Cetacean to the Act. For example, Cetacean assumes that animals cannot sue
under the ESA and APA because those statutes do not expressly authorize suits by
animals. Yet, similarly, the Act does not expressly authorize suits by corporations
and other non-human entities, which courts recognize all the time. Thus, it is clear
10006722 -7-
that the Actunlike the ESA and APAis not to be interpreted as narrowly as the
holding of Cetacean would suggest.2
In any event, to the extent that Cetacean made statements concerning the
standing of animals under other statutes not before the court, such statements are
nothing more than dicta which are not binding here. Cetacean, 386 F.3d at 1173
(A statement is dictum when it is made during the course of delivering a judicial
opinion, but is unnecessary to the decision in the case and is therefore not
precedential.) (internal quotations omitted).
2. The Compendium does not control.
Defendants also erroneously rely on the Compendium. Publications by the
Copyright Office are only authoritative to the extent that they have the power to
persuade. Christensen v. Harris County, 529 U.S. 576, 587 (2000). Here, the
Compendium is not persuasive because it does not explain why it prohibits animal-
created works from being registered.
2
Defendant Slater correctly notes that Cetacean does not reference the effect of
sovereign immunity on its interpretation of the ESA. Unlike statutes such as the
ESA and APA, which are by necessity construed narrowly because of the
implications of sovereign immunity, the Act has been historically construed
broadly. See e.g., Coos Cty. Bd. of Cty. Comm'rs v. Kempthorne, 531 F.3d 792,
802 (9th Cir. 2008) ([T]he United States must waive its sovereign immunity
before a federal court may adjudicate a claim brought against a federal agency, and
[it] has done so through the above-discussed ESA and APA provisions ).
10006722 -8-
Rather than offer an explanation, the Compendium merely cites two cases.
See Compendium 306. First, it cites Trade-Mark Cases, 100 U.S. 82, 94 (1879),
which held that copyright law protects the fruits of intellectual labor that are
founded in the creative powers of the mind. Second, it cites Sarony, which held
that copyright law is limited to original intellectual conceptions of the author.
111 U.S. at 58. Both of these cases, however, address the originality requirement
of copyright protectioni.e., the prohibition of actual copying. See Urantia
Foundation, 114 F.3d at 958 (Original, as the term is used in copyright, means
only that the work was independently created by the author (as opposed to copied
from other works), and that it possesses at least some minimal degree of
creativity.) Yet defendants do not dispute that the Monkey Selfies are original,
lest they never would have become so famous.
In addition, the Compendium errs by assuming that the creativity
requirement of originality must come from a human. It is important to note that
the issue of animal-created works was not before the Supreme Court when it
decided Trade-Mark Cases and Sarony, and neither case addressed whether the
creative powers of the mind must come from a human mind. See Trade-Mark
Cases, 100 U.S. at 94. Moreover, the Supreme Court has repeatedly emphasized
that the level of creativity required for copyright protection is extremely low.
10006722 -9-
Urantia Foundation, 114 F.3d at 959 (citing Feist Publications, Inc. v. Rural
Telephone Service Company, Inc., 499 U.S. 340, 345 (1991)).
Thus, it is an open question whether animals can meet the requirements of
creativity. Over a century of case law dealing with photographs suggest that they
can. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) (The
least pretentious picture has more originality in it than directories and the like,
which may be copyrighted.); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074
(9th Cir. 2000) (photographs generally satisfy this minimal standard).
Finally, this Court has already rejected the Compendiums denial of
copyright protection for works created by non-humans. In Urantia Foundation,
this Court observed that the copyright laws, of course, do not expressly require
human authorship, and therefore concluded that even a book allegedly written
by divine beings could be subject to copyright protection. 114 F.3d at 959.
C. PETA HAS STANDING AS NARUTOS NEXT FRIEND
Defendants argue for the first time that PETA lacks the requisite relationship
with Naruto to act as his next friend. Before the District Court, defendants only
challenged Narutos standingnot PETAs. Arguments raised for the first time on
appeal are generally waived. Lahr v. Natl Transp. Safety Bd., 569 F.3d 964, 980
(9th Cir. 2009). The Ninth Circuit only considers purely legal arguments raised
10006722 - 10 -
for the first time on appeal where consideration of the issue would not prejudice
the opposing partys ability to present relevant facts. Lahr, 569 F.3d at 980.3
Here, defendants concede that whether PETA has the capacity to serve as a
next friend is a factual one. See Coal. of Clergy, Lawyers, & Professors v. Bush,
310 F.3d 1153, 1162 (9th Cir. 2002) ([T]he contours of the requisite significant
relationship do not remain static, but must necessarily adapt to the circumstances
facing each individual [party]. Significance is a relative concept, depending on
the individual [partys] plight Moreover, the concept of true dedication is a
subjective one, difficult of measurement.). Moreover, the decision whether to
appoint someone as a litigants next friend is normally left to the sound
discretion of the trial court and may be reviewed only for abuse of that discretion.
U.S. v. 30.64 Acres of Land, 795 F.2d 796, 804 (9th Cir. 1986). Defendants did not
challenge PETAs standing in the proceedings below. PETA has not been given an
opportunity to present relevant facts that could affect [the Courts] decision,
Lahr, 569 F.3d at 980, and the District Court was not asked to weigh the evidence
and exercise its discretion. See 30.64 Acres of Land, 795 F.2d at 804.
3
In the analogous context of a partys representative capacity under Rule 9 of the
Federal Rules of Civil Procedure, courts have held that the failure to raise a
challenge in a timely manner results in a waiver. See Summers v. Interstate
Tractor & Equip. Co., 466 F.2d 42, 4950 (9th Cir. 1972) (Since Interstate did
not raise the defense of plaintiff's capacity to sue by specific negative averment in
its answer, or at any time until appeal, it is deemed to have waived that defense.).
10006722 - 11 -
Had PETAs next friend status been challenged in the District Court, PETA
would have submitted declarations and other evidence indicating that it satisfies
the requirements of next friend standing. As stated in the complaint, PETA is the
largest animal rights organization in the world and operates, in part, under the
principle that as sentient beings animals have rights that are or should be
recognized in law and protected by courts. Since its inception, PETA has
championed establishing the rights and legal protections available to animals
beyond their utility to human beings or the belief that they are mere things
devoid and undeserving of any rights. PETA has the financial and operational
resources and professional expertise to protect Narutos copyright. In addition, had
the District Court determined that the facts alleged in the complaint were
inadequate, PETA would have been given an opportunity to amend the complaint
to allege additional facts. See Cervantes v. Countrywide Home Loans, Inc., 656
F.3d 1034, 1041 (9th Cir. 2011) (leave to amend should be given freely). By
waiting until the appeal, defendants have deprived PETA of that opportunity.
Finally, defendants cite Whitmore v. Arkansas, 495 U.S. 149 (1990), which
arose in the context of a habeas proceeding, where next friend status is not
commonly granted. See Lehman v. Lycoming County Childrens Servs. Agency,
458 U.S. 502, 523 (1982). Outside that context, courts often permit next friends
to prosecute actions on behalf of minors and incompetents, as acknowledged by
10006722 - 12 -
Whitmore. See 495 U.S. at 163, n.4 (discussing cases); see also Fed. R. Civ. P.
17(c); Compendium 405.2405.3 (Copyright Office accepts applications from
the representatives of minors and incompetents).
There is no issue as to Narutos Article III standing; the question presented
for decision is whether the Act gives him standing. At minimum, the Court should
resolve whether Naruto has standing and leave it for the District Court to decide,
on remand, whether PETA has the capacity to serve as a next friend (assuming that
the issue has not been waived), potentially after filing an amended complaint.
D. DEFENDANT SLATERS REQUEST FOR ATTORNEYS
FEES IS PREMATURE
Defendant Slaters brief includes a premature request for attorneys fees. As
discussed above, the decision of the District Court should be reversed in Narutos
favor. Thus, no attorneys fees should be awarded in this case.4
In addition, Ninth Circuit Rule 391.6 states that a request for attorneys
fees should be filed after the latter of the expiration of the period within which a
petition for rehearing may be filed or the Courts disposition of the petition [for
rehearing]. Furthermore, Ninth Circuit Rule 391.6(b) requires the party to
4
The request also ignores the District Courts order, which states that [a]ny
motions for attorneys fees incurred prior to the entry of the judgment shall be filed
within 14 days after the Ninth Circuit dismisses any appeal or mandate issues, if
an appeal is filed. [Dist. Ct. Dkt. 47.]
10006722 - 13 -
include a detailed itemization of the tasks performed, the amount of time spent
on those tasks, counsels hourly rates, and an affidavit attesting to the accuracy of
the information. Here, Defendant Slater has followed none of these procedures.
For this reason alone, the Court should deny Defendant Slaters request.
But even if the Court disagrees, the issue of fees should not be addressed
during this appeal on the merits. Addressing issues related to attorneys fees
would not serve judicial economy. No request for fees has yet to be presented to
the District Court, there have been no factual findings concerning an award of
attorneys fees, and Defendant Slaters co-defendant has not submitted a similar
requestmeaning that any consideration of fees would have to be done piecemeal.
Indeed, in all of the cases cited by Slater where this Court addressed the
issue of attorneys fees along with the merits of a copyright appeal, this Court did
so because it was simultaneously reviewing an award of attorneys fees that had
been entered by the district court. See, e.g., Lanard Toys, Ltd. v. Novelty, Inc., 375
F. Appx 705, 714 (9th Cir. 2010). Here, there have been no factual findings
concerning the propriety of attorneys feesas evidenced by Slaters attempt to
cite a variety of sources outside the record of these proceedings.
For these reasons, the Court should reject any request for attorneys fees
until after the merits of the appeal have been resolved.
10006722 - 14 -
IRELL & MANELLA LLP

Dated: September 12, 2016

Of Counsel:

General Counsel
PETA FOUNDATION
10006722 - 15 -
9th Circuit Case Number(s) 16-15469
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Appellate Briefs in Monkey Selfie Copyright Case

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Case: 16-15469, 07/28/2016, ID: 10067080, DktEntry: 17, Page 1 of 38

Docket No. 1615469

IN THE UNITED STATES COURT OF APPEALS

NARUTO, by and through his Next Friend,

DAVID J. SLATER, et al.,

On Appeal from the United States District Court

OPENING BRIEF OF PLAINTIFFAPPELLANT

IRELL & MANELLA LLP

Attorneys for Plaintiff-Appellant Naruto

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Next Friend People

Treatment of Animals, Inc., has no parent corporation and no publicly held

IRELL & MANELLA LLP

Attorneys for PlaintiffAppellant Naruto,

Jeffrey S. Kerr, Esq.

STATEMENT OF THE ISSUE FOR REVIEW .............................................. 1

STATEMENT OF THE CASE ........................................................................ 1

A. Nature of the Case ........................................................................ 1

B. Procedural History ........................................................................ 2

STATEMENT OF FACTS ............................................................................... 3

SUMMARY OF ARGUMENT ........................................................................ 4

STANDARD OF REVIEW .............................................................................. 6

A. The Copyright Act grants standing to anyone who creates

B. Authorship under the Copyright Act is not limited to

C. The Copyright Act must be interpreted broadly to achieve

D. Animal authorship under the Copyright Act is an issue of

E. The district court erroneously relied on the Compendium ......... 21

ABC, Inc. v. Aereo, Inc.,

Action Tapes, Inc. v. Mattson,

Authors Guild, Inc. v. HathiTrust,

Bartok v. Boosey & Hawkes, Inc.,

Bleistein v. Donaldson Lithographing Co.,

Boyds Collection, Ltd. v. Bearington Collection, Inc.,

Burrow-Giles Lithographic Co. v. Sarony,

Cetacean Cmty. v. Bush,

Christensen v. Harris County,

Cmty. for Creative Non-Violence v. Reid,

District of Columbia v. Heller,

Defenders of Wildlife v. Gutierrez,

Durham Industries, Inc. v. Tomy Corp.,

Ets-Hokin v. Skyy Spirits, Inc.,

Feist Publns, Inc. v. Rural Tel. Serv. Co.,

First Nat. Bank of Boston v. Bellotti,

Harper & Row, Publishers, Inc. v. Nation Enters.,

Imperial Toy Corp. v. Goffa Intl Corp.,

Jewelers Circular Pub. Co. v. Keystone Pub. Co.,

John Wiley & Sons, Inc. v. DRK Photo,

Lee v. City of Los Angeles,

Los Angeles News Service v. Tullo,

Mason v. Jamie Music Pub. Co.,

McGary v. City of Portland,

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,

Monge v. Maya Magazines, Inc.,

New Idea Farm. Equip. Corp. v. Sperry Corp.,

North Coast Indus. v. Jason Maxwell, Inc.,

Novak v. United States,

Playboy Enterprises Inc. v. Dumas,

Quality King Distribs., Inc. v. LAnza Research Intl, Inc.,

Rhoades v. Avon Prods., Inc.,

Santa Clara Cnty. v. Southern Pacific R. Co.,

Shell Offshore, Inc. v. Greenpeace, Inc.,

Silvers v. Sony Pictures Entmt, Inc.,

Skidmore v. Swift & Co.,

Sony Corp. of Am. v. Universal City Studios,