Updated Blog by Richard Heagy
Naruto: I want my royalties!
Naruto v. David Slater, the topic and inspiration for the original December 2016 blog “ENOUGH ABOUT MONKEY SELFIES”, has recently come back to life as the appeal to the 9th Circuit Court of Appeals by PETA as “Next Friend” of Naruto, so says PETA, has just been heard by a panel of three appellate court judges. For those interested, the hearing may be viewed online at [https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000011923]. As previously reported Dr. Antje Engelhardt dropped out as one of Naruto’s Next Friends on May 4, 2016, leaving only PETA listed as Next Friend on appeal, the status of which was questioned during the hearing.
By now, everyone who doesn’t live in a cave must have heard of the famous monkey selfie lawsuit – Naruto v. Slater. For those who do live in a cave here is a very brief summary. PETA (People for the Ethical Treatment of Animals) filed a lawsuit in San Francisco in 2015 for copyright violation against British photographer David Slater et. al. for damages on behalf of a monkey dubbed ‘Naruto’, claiming that Slater does not own the copyright to Naruto’s photo as it is a selfie taken by the monkey. The case was dismissed by the District Court in 2016 and appealed by PETA. The appeal was finally heard by a three-judge panel of the 9th Circuit last week (July 12, 2017) and copyright lawyers around the world are sitting on the edge of their chairs awaiting the decision.
In the meantime other strange things have happened. On May 30, 2017 a Request FOR JUDICIAL NOTICE was filed with the Court of Appeals in which EXHIBIT A included a copy of a COMPLAINT-SUMMONS for criminal trespass in the state of New Jersey stating that one Antje Engelhardt on 4/22/2017 had rung the doorbell of the residence of PETA attorney Jeffrey Kerr, who told her to leave the premises, after which she walked into the backyard of the residence. Perhaps she has spent too much time walking wherever she wants in the jungles of Indonesia in the company of monkeys, or maybe Jeffrey Kerr has spent too much time representing monkeys and doesn’t want to talk about them. The COMPLAINT-SUMMONS ironically refers to an intent to harass another or cause annoyance or alarm, something that PETA would never do, aside from suing a British photographer in a court almost half way around the world (San Francisco) in what appears to be an attempt to gain publicity with a ridiculous theory that animals can own copyrights.
MONKEY’S PETITION BEFORE the 9th Circuit Court of Appeals
In an unusual move the 9th Circuit has allowed a last minute petition to be heard in-camera prior to rendering its judgment. The proceeding is not available online as it was held in-camera with members of the public and press barred. Don’t ask how we got it.
Three serious looking appellate judges for the 9th Circuit sit behind a long bench in a small courtroom in the James R. Browning U.S. Courthouse in San Francisco, California, all dressed in black and looking perplexed. At a table nearby are seated the petitioner and the petitioner’s representative.
PETITIONER’s REPRESENTATIVE: May it please the court…
CHIEF JUDGE: You haven’t introduced yourself.
PETITIONER’s REPRESENTATIVE: I’m sorry Your Honor. My name is Raja.
ASSOCIATE JUDGE: Are you authorized to practice law before this court?
PETITIONER’s REPRESENTATIVE: No, Your Honor but I came a long way just to be here and it looks like I got here just in time. It took three months.
ASSOCIATE JUDGE: Three months?
PETITIONER’s REPRESENTATIVE: Yes. NARUTO and I live in Indonesia.
ASSOCIATE JUDGE: Why didn’t you fly?
PETITIONER’s REPRESENTATIVE: They wouldn’t let us through airport security, so we took a banana boat. The ride was not very smooth and they ran out of bananas two days before we arrived.
ASSOCIATE JUDGE: While I appreciate that you had a long journey, you are not authorized to practice law in the United States.
VISITING JUDGE: This appeal involves an unusual application of copyright law and I think we should make an exception in this case. I myself did travel across the country to be here so I can appreciate what the PETITIONER’s REPRESENTATIVE and the PETITIONER must have endured.
ASSOCIATE JUDGE (to PETITIONER’s REPRESENTATIVE): Are you a lawyer in Indonesia?
PETITIONER’s REPRESENTATIVE: Not at present.
ASSOCIATE JUDGE: You mean that you are a retired lawyer?
PETITIONER’s REPRESENTATIVE: No.
ASSOCIATE JUDGE: Then you must be licensed to practice law in some other country.
PETITIONER’s REPRESENTATIVE: I’m afraid not.
ASSOCIATE JUDGE: Then what makes you qualified to represent the PETITIONER?
PETITIONER’s REPRESENTATIVE: I’m a mahout.
ASSOCIATE JUDGE: What’s that?
PETITIONER’s REPRESENTATIVE: A trainer of elephants. I worked in Thailand for many years training elephants to perform in an elephant orchestra, but had to take early retirement because of disability when one of the elephants stepped on my foot. Then I moved back to Indonesia and began helping with monkeys. That’s how I got to know NARUTO, even better than Dr. Antje Engelhardt.
VISITING JUDGE: Are you able to communicate with NARUTO?
PETITIONER’s REPRESENTATIVE: Definitely.
ASSOCIATE JUDGE: I suppose that you and NARUTO are on a first-named basis.
PETITIONER’s REPRESENTATIVE: Don’t be ridiculous.
ASSOCIATE JUDGE: This whole lawsuit has been ridiculous from the start.
CHIEF JUDGE: Be that as it may, we may as well proceed.
PETITIONER’s REPRESENTATIVE: I would like to present NARUTO’s objections to the way the case has been handled.
VISITING JUDGE: You mean the objections that you have on NARUTO’s behalf.
PETITIONER’s REPRESENTATIVE: Not at all. NARUTO has made his objections known to me.
ASSOCIATE JUDGE: This, I gotta see.
PETITIONER’s REPRESENTATIVE: You will, but first I wish to demonstrate that NARUTO is capable of manipulating a camera and taking his own selfies unassisted by anyone.
(PETITIONER’s REPRESENTATIVE motions to NARUTO, who stands and moves several feet away. PETITIONER’s REPRESENTATIVE reaches into his briefcase and pulls out a digital camera; then tosses the camera into the air for NARUTO to catch. NARUTO starts playing with the camera and pushes the shutter every so often, alternating between smiles and frowns)
CHIEF JUDGE (to PETITIONER’s REPRESENTATIVE): Our time is limited, so please proceed.
(PETITIONER’s REPRESENTATIVE unsuccessfully tries to take the camera away from NARUTO. He then pulls a banana from his briefcase and tosses it into the air. NARUTO drops the camera in favor of the banana)
PETITIONER’s REPRESENTATIVE: I would like each of you to look at the photos stored in the camera.
(PETITIONER’s REPRESENTATIVE hands the camera to the Judge on the left who takes a look and passes the camera along to the other Judges)
ASSOCIATE JUDGE: I don’t see any selfies? These are just poor shots, mostly out of focus.
PETITIONER’s REPRESENTATIVE: Of course. Most of the selfies shot on David Slater’s camera were not worthy of publication, but I have just demonstrated that NARUTO is capable of using a camera to take selfies. If enough photos are taken eventually a good one will result as in the case at hand.
CHIEF JUDGE: Assuming that NARUTO took the selfie that is the subject of this case, what is it that you are seeking?
PETITIONER’s REPRESENTATIVE: I would like to present NARUTO’s objections to PETA’s representation as his NEXT FRIEND.
CHIEF JUDGE: What are they?
PETITIONER’s REPRESENTATIVE: I would like to question NARUTO.
(The Judges look at each other and shake their heads. PETITIONER’s REPRESENTATIVE takes NARUTO by the hand and leads him to a seat up front)
PETITIONER’s REPRESENTATIVE: NARUTO, I would like to ask you a few questions.
(NARUTO jumps up and down in the chair and makes faces at the Judges. PETITIONER’s REPRESENTATIVE hands NARUTO another banana to calm him down)
ASSOCIATE JUDGE: Am I dreaming?
VISITING JUDGE: No, but this is not any more ridiculous than the copyright issue involved.
PETITIONER’s REPRESENTATIVE: NARUTO, do you wish to have PETA represent you as NEXT FRIEND?
(NARUTO responds with a negative answer by shaking his head back and forth)
PETITIONER’s REPRESENTATIVE: Why is that?
(NARUTO makes a face and tosses the banana peel across the room. PETITIONER’s REPRESENTATIVE picks it up and tosses it into a nearby wastebasket. He then opens his wallet and extracts a ten dollar bill, which he hands to NARUTO, who examines it closely)
PETITIONER’s REPRESENTATIVE: It’s about the money, isn’t it?
(NARUTO nods his head to indicate ‘yes’)
VISITING JUDGE (to PETITIONER’s REPRESENTATIVE): You are leading the witness.
ASSOCIATE JUDGE: In addition, the witness is merely shaking his head in response to your questions, not actually answering them.
PETITIONER’s REPRESENTATIVE: That is no problem. NARUTO, please answer my questions instead of just shaking your head, okay?
(NARUTO nods his head in agreement)
ASSOCIATE JUDGE: I suppose NARUTO speaks both Indonesian and English.
(The ASSOCIATE JUDGE, amused, hits the table with his fist so hard that his coffee cup spills over)
PETITIONER’s REPRESENTATIVE: Only English.
ASSOCIATE JUDGE: Did he learn English in high school in Indonesia?
PETITIONER’s REPRESENTATIVE: Of course not. NARUTO learned English during his three month voyage on the banana boat. One of the crew was a former teacher of English as a second language.
CHIEF JUDGE (to PETITIONER’s REPRESENTATIVE): Let’s stop wasting time. Proceed with your questions.
PETITIONER’s REPRESENTATIVE (to NARUTO): NARUTO, do you wish to have PETA represent you as NEXT FRIEND?
NARUTO (speaking English with an unusual accent): Where is Dr. Engelhardt?
(The three Judges react with astonishment)
PETITIONER’s REPRESENTATIVE: I am sorry to tell you that Dr. Engelhardt is no longer participating as a NEXT FRIEND in this appeal.
PETITIONER’s REPRESENTATIVE: Please, NARUTO, you must be more respectful in Court.
PETITIONER’s REPRESENTATIVE: I ask you again, do you wish to have PETA represent you as NEXT FRIEND?
PETITIONER’s REPRESENTATIVE: Why is that?
NARUTO: They plan to spend my royalties on me and my relatives and other macaques in the community and their habitat.
PETITIONER’s REPRESENTATIVE: What’s wrong with that?
NARUTO: It’s my money, mine, only mine.
VISITING JUDGE: That’s a valid point, assuming that NARUTO owns the copyright to his selfie. If PETA, or anyone, were to be appointed by the Court to collect NARUTO’s royalties, it would create a fiduciary relationship and the money would have to be held in trust strictly for the benefit of NARUTO.
ASSOCIATE JUDGE: I agree, purely from a theoretical viewpoint. Spending trust funds on other monkeys would be a violation of fiduciary duty.
CHIEF JUDGE: That certainly is a valid concern and will be taken into account.
PETITIONER’s REPRESENTATIVE (to NARUTO): Do you have any more objections?
NARUTO: I don’t want to pay some agent 10% to collect my royalties or 33% to any lawyers.
ASSOCIATE JUDGE (to NARUTO): That may be of concern to you, but it is not relevant to whether or not PETA should continue to represent you as NEXT FRIEND in this appeal.
(The ASSOCIATE JUDGE slaps himself on the forehead)
ASSOCIATE JUDGE: I don’t believe this. I am talking to a monkey.
NARUTO: I’m a macaque, not a monkey.
CHIEF JUDGE (to PETITIONER’s REPRESENTATIVE): Any more questions?
PETITIONER’s REPRESENTATIVE: No, that is all.
ASSOCIATE JUDGE (to CHIEF JUDGE): I hope the record of this hearing will be sealed.
CHIEF JUDGE: We will take into account today’s testimony in reaching a decision, but the record of this hearing will definitely be sealed.
VISITING JUDGE: Thank God. If this ever got out.…