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Naruto v. Slater: A Breakdown In Litigation Incentives

Naruto's Selfie

Naruto's Selfie

By now, many people have heard about Naruto v. Slater, otherwise known as the "monkey selfie" case. To most, the case is a punchline -- little more than an exemplar of postmodern absurdity as played out in a courtroom. Scratch below the surface, however, and you get something quite different: a grim tale of misaligned incentives in our judicial system, particular with respect to the cost of litigation.

Facts of the Case

The facts of the case are relatively straightforward: In 2011, David Slater (a British nature photographer) left his camera unattended on a tripod while taking photographs of endangered crested macaques in Sulawesi, Indonesia. One of the macaques (Naruto) took hold of the camera and began playing around with it, resulting in a series of highly amusing self-portraits that quickly went viral online once published.

At first, Slater himself attempted to assert ownership over the copyrights to Naruto's selfies, which caused him to butt heads with Wikipedia when they uploaded the photograph to their platform under the justification that the photograph was actually in the public domain, as it had been taken by an animal rather than a human. However, PETA then further complicated matters by asserting that, in fact, Naruto was the copyright owner of his selfies, and brought a federal lawsuit in the capacity of Naruto's "next friend" (a status typically reversed for representatives of children and those with developmental disabilities who would otherwise be unable to bring suit without such assistance) to prove it. While the claim of authorship by species other than homo sapiens may be novel," PETA argued, "‘authorship’ under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto."

What Happened Next

In a sane and rational world, Naruto's case would have been tossed quickly and cheaply. Indeed, PETA's entire case was squarely foreclosed by controlling Ninth Circuit authority, in which the Court stated that "if 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 Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004) (quoting Citizens to End Animal Suffering & Exploitation v. New England Aquarium, 836 F. Supp. 45, 49 (D. Mass. Oct. 25, 1993)). Much as the Ninth Circuit found in that case that the Endangered Species Act contains no language empowering animals to sue, the Copyright Act also contains no mention of animals as capable of asserting intellectual property rights.

That is precisely the basis upon which the District Court ruled in Naruto's case, additionally noting that Copyright Office policy explicitly states it “will not register works produced by nature, animals, or plants,” such as “a photograph taken by a monkey.” Regardless of PETA's assertion that there exists "‘tremendous [public] interest in animal art," the Court held that the Copyright Act as written cannot be extended beyond its plain and ordinary meaning of only granting copyright protection to "people" and "human beings." (Indeed, given that the primary purpose under the Constitution of granting protection through the Copyright Act is to incentivize authorial creativity, it begs the question of how society would communicate that to animals in order to somehow motivate them to undertake creative endeavors of their own volition.)

Undeterred, PETA appealed to the Ninth Circuit (the same court bound by its previous determinations in Cetacean Cmty), where PETA was battered with questions as to how a crested macaque could possibly comply with all the strictures of the Copyright Act. Indeed, walking away from oral arguments in the case, there was no indication the Ninth Circuit was prepared to do anything other than hand Slater a decisive victory. Yet after the case was taken under consideration by the Court, the parties announced they had reached a settlement, by which Slater agreed to donate 25% of future revenue earned from Naruto's selfies photos to charity, and both parties requested the Court "to dismiss the case and throw out a lower court decision that said animals cannot own copyrights," according to the Associated Press.

Why Did Slater Settle?

While we may never know all the reasons why Slater chose to settle his case instead of await the Ninth Circuit's decision, given that everyone expected him to emerge victorious, another headline related to the case might provide a hint: "Monkey selfie photographer says he's broke: 'I'm thinking of dog walking'". According to The Guardian, "David Slater could not afford the air fare to San Francisco to attend the [Ninth Circuit] hearing on Wednesday. Nor can he afford to replace his broken camera equipment, or pay the attorney who has been defending him since the crested black macaque sued him in 2015[.]" While unfortunate, this is also unsurprising -- federal litigation is an expensive proposition, particularly when involving an appeal, and good litigators routinely warn their clients about the prospect of such costs ahead of time.

Yet this is not a particularly satisfying answer. Slater had already incurred the bulk of his litigation costs, with the District Court proceedings wrapped (absent an appellate reversal) and briefing before the Ninth Circuit already complete. Indeed, most observers expected the only work left once the Ninth Circuit ruled to be of a kind Slater would presumably enjoy: placing a request for PETA to pay his attorneys' fees in full. The Copyright Act is one of the few American legal schemes that allows for fee shifting, and the Supreme Court recently explored when such fee shifting was appropriate in the case of Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2016).

In Kirtsaeng, the Supreme Court reaffirmed that a lack of "objective reasonableness" in a losing party's case is a key motivating factor in granting an award of fees and costs: "[I]t both encourages parties with strong legal positions to stand on their rights and deters those with weak ones from proceeding with litigation. When a litigant—whether plaintiff or defendant—is clearly correct, the likelihood that he will recover fees from the opposing (i.e., unreasonable) party gives him an incentive to litigate the case all the way to the end." One would think that PETA taking Slater for a six-figure legal ride based on a spurious argument that binding circuit authority had already rejected could not present a clearer case in which principles of compensation and deterrence warranted a fee shift. Yet, for one reason or another, Slater seemingly decided that it was not worth pursuing.

Takeaway Thoughts

While the subject matter of Naruto v. Slater may no doubt be entertaining, we must remind ourselves that the attorneys on each side did not litigate for fun, and the fact that Slater had to bankrupt himself just to get as far as he did is no laughing matter. While an organization like PETA may have the necessary funds to waste on spurious litigation, many litigants of modest means cannot fight the good fight for the mere prospect of eventually being "considered" for reimbursement of their life savings, no matter how strongly predictive markers line up in their favor. In this case, the result is Slater agreeing to give away more of his money at PETA's insistence -- something that few would agree is warranted in either law or equity.

Pierce Law Group LLP