Naruto v. David John Slater et al

RESPONSE

N.D. Cal.December 4, 2015

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS IRELL & MANELLA LLP David A. Schwarz (State Bar No. 159376) DSchwarz@irell.com 1800 Avenue of the Stars, Ste. 900 Los Angeles, CA 90067–4276 Tel: 310–277–1010 Fax: 310–203–7199 PETA FOUNDATION Jeffrey S. Kerr (admitted pro hac vice) JeffK@petaf.org 1536 16th Street NW Washington, DC 20036 Tel: 202–540–2171 Fax: 202–540–2208 Matthew Strugar (State Bar No. 232951) Matthew-s@petaf.org Martina Bernstein (State Bar No. 230505) MartinaB@petaf.org 2154 W. Sunset Boulevard Los Angeles, CA 90026 Tel: 323–739–2701 Fax: 213–484–1648 Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION NARUTO, a Crested Macaque, by and through his Next Friends, PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., and ANTJE ENGELHARDT, Ph.D. Plaintiff, vs. DAVID JOHN SLATER, an individual, BLURB, INC., a Delaware corporation, and WILDLIFE PERSONALITIES, LTD., a United Kingdom private limited company, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 15-cv-4324-WHO PLAINTIFF NARUTO’S COMBINED OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS Judge: Hon. William H. Orrick Date: January 6, 2016 Time: 2:00 p.m. Courtroom: 2, 17th Floor Complaint filed September 21, 2015 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 1 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page 5114200.3 04 - i - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS I. INTRODUCTION ............................................................................................................... 1 II. STATEMENT OF RELEVANT FACTS ........................................................................... 3 III. LEGAL STANDARD ......................................................................................................... 4 IV. ARGUMENT ...................................................................................................................... 5 A. Animals Have Standing To Sue Under The Copyright Act .................................... 5 B. “Authorship” Under The Copyright Act Does Not Exclude Animals .................... 7 C. The Copyright Act Must Be Interpreted Broadly .................................................. 10 D. No Authority Has Addressed Animal Authorship ................................................ 13 E. The Complaint Alleges A Concrete, Redressable Injury ...................................... 17 F. This Court Should Not Rule On The Merits ......................................................... 18 V. CONCLUSION ................................................................................................................. 20 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 2 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page 5114200.3 04 - ii - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Cases Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) ............................................................................................. 6 Action Tapes, Inc. v. Mattson, 462 F.3d 1010 (8th Cir. 2006) ........................................................................................... 12 Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941 (2d Cir. 1975) ........................................................................................ 16, 17 Bell Atl. Bus. Sys. Servs., Inc. v. Hitachi Data Sys. Corp., No. C 93-20079 JW, 1995 WL 836331 (N.D. Cal. Dec. 14, 1995) .................................. 12 Best Life Assur. Co. v. Comm’r, 281 F.3d 828 (9th Cir. 2002) ............................................................................................. 13 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) .......................................................................................................... 15 Boyds Collection, Ltd. v. Bearington Collection, Inc., 360 F. Supp. 2d 655 (M.D. Penn. 2005) ........................................................................... 16 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) ..................................................................................................... passim Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004) ............................................................................... 2, 5, 7, 13 Chicago Bd. of Educ. v . Substance, Inc., 354 F.3d 624 (7th Cir. 2003) ............................................................................................. 17 Christensen v. Harris County, 529 U.S. 576 (2000) .......................................................................................................... 16 Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) ...................................................................................................... 6, 12 D.C. v. Heller, 554 U.S. 570 (2008) .......................................................................................................... 10 DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015) ............................................................................................. 6 Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008) ...................................................................................... 5, 18 DeSylva v. Ballentine, 351 U.S. 570 (1956) .......................................................................................................... 16 Doe v. Walker, 193 F.3d 42 (1st Cir. 1999) ............................................................................................... 19 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 3 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 5114200 - iii - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980) ................................................................................................ 8 Eldred v. Ashcroft, 537 U.S. 186 (2003) ...................................................................................................... 1, 11 Elec. Constr. & Maint. Co., Inc. v. Maeda Pac. Corp., 764 F.2d 619 (9th Cir. 1985) ......................................................................................... 5, 19 Epstein v. Washington Energy Co., 83 F.3d 1136 (9th Cir. 1996) ............................................................................................... 5 Ets–Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) ........................................................................................... 15 Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) ............................................................................................. 12 Goldstein v. California, 412 U.S. 546 (1973) ...................................................................................................... 6, 10 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) .......................................................................................................... 11 Imperial Toy Corp. v. Goffa Int’l Corp., 988 F. Supp. 617 (E.D.N.Y. 1997) ...................................................................................... 8 Jewelers’ Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932 (2d Cir. 1921) .................................................................................................. 15 John Wiley & Sons, Inc. v. DRK Photo, 998 F. Supp. 2d 262 (S.D.N.Y. 2014) ................................................................................. 5 Lamie v. U.S. Trustee, 540 U.S. 526 (2004) ............................................................................................................ 5 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) ............................................................................................... 4 Los Angeles News Service v. Tullo, 973 F.2d 791 (1992) .......................................................................................................... 15 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .......................................................................................................... 17 Mason v. Jamie Music Pub. Co., 658 F. Supp. 2d 571 (2009) ............................................................................................... 11 McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004) ................................................................................. 5, 19, 20 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 4 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 5114200 - iv - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012) ........................................................................................... 17 North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031 (9th Cir. 1992) ........................................................................................... 14 Nottage v. Jackson, 11 Q.B.D. 627 (1883) .......................................................................................................... 7 Obergefell v. Hodges, 135 S.Ct. 2584 (2015) ....................................................................................................... 13 Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082 (N.D. Cal. 2008) .............................................................................. 5 PDK Labs., Inc. v. DEA, 362 F.3d 786 (D.C. Cir. 2004) .......................................................................................... 10 Perfect 10, Inc. v. Amazon, Inc., 508 F.3d 1146 (9th Cir. 2007) ..................................................................................... 17, 19 Playboy Enterprises Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995) .................................................................................................. 8 Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881 (9th Cir. 2005) ............................................................................................... 5 Skidmore v. Swift & Co., 323 U.S. 134 (1944) .......................................................................................................... 16 Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984) ................................................................................................ 1, 11, 17 Thomas v. New York City, 814 F. Supp. 1139 (E.D.N.Y. 1993) .................................................................................. 19 Trade-Mark Cases, 100 U.S. 82 (1879) ............................................................................................................ 14 U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009 (9th Cir. 2012) ............................................................................................. 6 United States v. Kane, 2013 WL 5797619 (D. Nev. Oct. 28, 2013) ...................................................................... 19 United States v. Mead Corp., 533 U.S. 218 (2001) .......................................................................................................... 16 United States v. Paramount Pictures, 334 U.S. 131 (1948) .......................................................................................................... 11 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 5 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 5114200 - v - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir. 1997) ............................................................................................. 14 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) ....................................................................................... 8, 18 Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000) ........................................................................................... 17 Statutes 17 U.S.C. § 101 ...................................................................................................................... passim 17 U.S.C. § 102(a) .................................................................................................................. passim 17 U.S.C. § 106 ............................................................................................................................. 17 17 U.S.C. § 106(1) .................................................................................................................. 17, 19 17 U.S.C. § 201(a) ............................................................................................................... 6, 11, 13 17 U.S.C. § 201(b) .......................................................................................................................... 8 17 U.S.C. § 203 ............................................................................................................................. 10 17 U.S.C. § 302(c) ........................................................................................................................... 9 17 U.S.C. § 304 ............................................................................................................................. 10 17 U.S.C. § 409(3) .......................................................................................................................... 9 17 U.S.C. § 411(a) ......................................................................................................................... 14 17 U.S.C. § 501(b) .............................................................................................................. 5, 17, 19 35 U.S.C. § 100(f) ........................................................................................................................... 9 42 U.S.C. § 287a-3a ........................................................................................................................ 4 5 U.S.C. § 551(2) ............................................................................................................................ 8 5 U.S.C. § 701(b)(2) ........................................................................................................................ 8 Other Authorities H. Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976) ......................................................................... 8 Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT (2015) ....................................... 2 U.S. Const., Art. I, § 8 ............................................................................................................... 6, 10 U.S. Const., Art. III ..................................................................................................................... 5, 8 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 6 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 5114200 - vi - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Rules Fed. Rule Civ. Proc. 17(c) ......................................................................................................... 4, 11 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 7 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200.3 04 - 1 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Plaintiff Naruto (“Naruto”), by and through his next friends, People for the Ethical Treatment of Animals, Inc. (“PETA”), and Antje Engelhardt, Ph.D. (“Dr. Engelhardt,” and together with PETA, the “Next Friends”), submit this combined opposition to the motions to dismiss of defendants David Slater (“Slater”) and Wildlife Personalities, Ltd. (“Wildlife”) (Doc. No. 28) and Blurb Inc. (“Blurb”) (Doc. No. 24) (“Defendants”). I. INTRODUCTION This case presents an issue of first impression: Whether human authorship is required for protection of works under the Copyright Act. There is no dispute here that Naruto took the photographs spontaneously and without human assistance. In every practical (and definitional) sense, he is the “author” of the works. Defendants argue that animals have no standing under the statute—that they cannot be “authors.” Yet none of the Defendants suggests that they have any entitlement to ownership of the works. Defendant Blurb implies that any work created by an animal falls into the public domain; Defendant Slater does not argue here that he owns the copyright. These positions are both inconsistent with other statements made by Defendants and wholly inconsistent with the premise of the Copyright Act—every copyright must have an author. And both Blurb and Mr. Slater ignore the fundamental question posed here: Does the Copyright Act permit Plaintiff’s ownership of the works or give him standing to assert claims under that statute? The answer to both questions is “Yes.” The text of the statute itself does not compel the conclusion that authorship may be vested exclusively in humans. To the contrary: 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). Copyright protection advances that goal by allowing authors to “disclose” their works without losing control of them. See Eldred v. Ashcroft, 537 U.S. 186, 190 (2003). The question of authorship merely begs the standing question too summarily ignored by Defendants. It is not inconsistent with Article III of the Constitution to grant standing to animals. Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 8 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 2 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Cetacean Community v. Bush, 386 F.3d 1169, 1176 (9th Cir. 2004). The only question is whether Naruto has standing under the Copyright Act. He does. Every copyright must have an “author.” If there is no author, there is no copyright. See 17 U.S.C. § 102(a). Furthermore, the Copyright Act explicitly grants standing to every author of an original work. Id. at §§ 201(a); 501(b). Thus, if animals cannot be “authors,” there is no copyright protection for the works they create; and if they can be “authors,” they have standing. To be sure, as Professor Arthur R. Miller notes, “the fragments in the cases do not resolve the question whether the Constitution requires human authorship” for protection under the Copyright Act. See Miller at 1065, infra at p. 14. However, because copyright protection exists primarily to advance society’s 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. While the circumstances presented here are novel, the issue is anything but trivial—a point underscored by the “rivers of ink [that] are spilt” on whether computers can be considered authors for copyright purposes. 1 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 soon demand an answer. Id. The answer to the question now before this court is therefore of considerable moment. The events preceding this litigation show that copyright protection is necessary, even for animal-created works. When Mr. Slater first shared Naruto’s remarkable photographs with the world, they quickly spread across the globe and all over the Internet. Mr. Slater claimed that he owned the copyrights, and threatened to sue the Wikimedia Foundation (and others) for distributing the photographs.1 Wikimedia responded that no one owned the photographs, reasoning that if animals are not “authors,” then the photographs were in the public domain. If 1 An example of one of Slater’s cease and desist letters, which is subject to judicial notice, was filed by Slater in an effort to obtain copyright registration in Guernsey. See Plaintiff’s Request for Judicial Notice (“RJN”), Ex. A. See also The Telegraph, “Wikipedia refuses to delete photo as ‘monkey owns it’” (Aug. 6, 2014) (available at http://www.telegraph.co.uk/technology/ news/ 11015672/Wikipedia-refuses-to-delete-photo-as-monkey-owns-it.html) (RJN Ex. B). Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 9 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 3 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS that is the state of copyright law, animal-created works (or, for that matter, works created by artificially intelligent computers) may never be protected. That result is inconsistent with Copyright Act’s text, history, and purpose. The Next Friends bring this lawsuit to determine whether Naruto is entitled to the rights associated with the works he created. Given the broad definition of that term and the clear purpose of the Copyright Act, the answer is yes. Defendants’ motions should be denied. II. STATEMENT OF RELEVANT FACTS Naruto is a free, autonomous seven-year old2 crested macaque who lives on the island of Sulawesi, Indonesia. In or around 2011, Naruto found an unattended camera brought into Naruto’s habitat by Defendant Slater. Using that camera, Naruto took a series of photographs of himself (the “Monkey Selfies”). Compl. ¶ 1. Naruto created the Monkey Selfies through a series of purposeful and voluntary actions that were entirely unaided by Slater. Id. at ¶ 2. The Monkey Selfies quickly became internationally famous. Seeking to capitalize on their popularity, Defendants published and sold a book containing Naruto’s Monkey Selfies, including one on its cover. Id. at ¶ 4. In that book and elsewhere (though tellingly not in their motions to dismiss), Defendants Slater and Wildlife claimed to own copyrights to the Monkey Selfies, even as they admitted that Naruto created the photographs without human assistance. Id. For example, in their book, they make these admissions in the course of describing the Monkey Selfies: 1. “Sulawesi crested black macaque smiles at itself whilst pressing the shutter button on a camera.” Compl. Ex. 2. 2. “A Sulawesi crested black macaque pulls one of several funny faces during its own photo shoot, seemingly aware of its own reflection in the lens. Despite the howling posture, the macaque was silent throughout, suggesting to me some form of fun and artistic experiment with its own appearance.” Id. at Ex. 3. 3. “Posing to take its own photograph, unworried by its own reflection, smiling. Surely a sign of self-awareness?” Id. at Ex. 4. 2 The complaint alleges Naruto is six years old. However, he turned seven on November 23, 2015, after the complaint was filed. Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 10 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 4 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS 4. “[T]he shutter was pressed by the monkey.” Id. at Ex. 4. 5. “‘My experience of these monkeys [crested macaques] suggested that they were not just highly intelligent but were also aware of themselves. . . . It was only a matter of time before one pressed the shutter resulting in a photo of herself [sic]. She [sic] stared at herself with a new found appreciation, and made funny faces – in silence – just as we do when looking in a mirror. She [sic] also, importantly, made relaxed eye contact with herself [sic], even smiling….She [sic] was certainly excited at her [sic] own appearance and seemed to know it was herself [sic].’” Id. at Ex. 4. 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 Dr. Engelhardt, a German primatologist and ethologist. Compl. ¶ 19. Since 2006, Dr. Engelhardt has served as the co-head of one of the foremost scientific projects studying the ecology, reproductive biology, and social systems of Naruto and his kin, as well as promoting their conservation and protection. Dr. Engelhardt is one of the world’s foremost experts on the Macaca nigra species to which Naruto belongs. Id. at ¶ 20. Dr. Engelhardt and those with whom she works have known, monitored, and studied Naruto since his birth. Id. at ¶ 21. 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. The Next Friends share a commitment and dedication to Naruto and the preservation of both his habitat and his rights. These are not concepts foreign to U.S. law. See Chimpanzee Health Improvement, Maintenance, and Protection Act, Pub. L. No. 106-551, 114 Stat. 2752 (codified at 42 U.S.C. § 287a-3a). Pursuant to that commitment, the Next Friends filed this lawsuit on Naruto’s behalf, pursuant to Rule 17(c) of the Federal Rules of Civil Procedure, in which they seek relief under the Copyright Act from the Defendants’ ongoing infringement of Naruto’s rights. III. LEGAL STANDARD 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 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 11 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 5 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS 668, 679 (9th Cir. 2001) (quoting Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). When assessing a challenge to the standing of the plaintiff, “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)). IV. ARGUMENT A. Animals Have Standing To Sue Under The Copyright Act Article III of the Constitution authorizes Congress to give animals standing to sue in federal court, just as Congress may grant standing to other non-human litigants, including “corporations, partnerships or trusts, and even ships.” Cetacean Community, 386 F.3d at 1176; see also Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082, 1093 (N.D. Cal. 2008) (“Article III does not prevent Congress from authorizing suits in the name of an animal”). The only question is “whether Congress has passed a statute actually doing so.” Id. The Next Friends bring this lawsuit on behalf of Naruto pursuant to the Copyright Act, 17 U.S.C. § 101 et seq., which grants standing to anyone, including Naruto, who creates an “original work of authorship.” “The starting point in discerning congressional intent is the existing statutory text.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004). 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 Act specifies who has standing to sue: “The legal or beneficial 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 available to any copyright “owner.” See Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 884 (9th Cir. 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. Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 12 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 6 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS 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. 2015) (“Accordingly, the author of an underlying work is entitled to sue a third party who makes an unauthorized copy . . . .”) (emphasis added). Congress chose not to define “author” in the Copyright Act. Instead, Congress borrowed that term from the Constitution itself, which authorizes Congress to protect the “Writings” of “Authors.” Goldstein v. California, 412 U.S. 546, 561 (1973) (citing Const. Art. I, § 8). 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 Burrow- Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)). “As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” 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 the case of a photograph, the author is typically “the person who sets it up and snaps the shutter.” Aalmuhammed v. Lee, 202 F.3d 1227, 1232 (9th Cir. 2000). Over a century ago, in Burrow-Giles Lithographic, the Supreme Court considered whether the “author” was the individual who physically took the picture or the individual who made an image out of the negative. To answer this question, the Court articulated its standard that an author is “he to whom Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 13 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 7 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS anything owes its origin.” 111 U.S. at 58. Applying that standard to a photograph, the Court concluded that the author is “‘the person who effectively is as near as he can be the cause of the picture which is produced.’” Burrow-Giles Lithographic, 111 U.S. at 61 (quoting Nottage v. Jackson, 11 Q.B.D. 627 (1883)). Here, Naruto has sufficiently alleged that he is the author of the Monkey Selfies. Naruto alleges, and Slater admits, that Naruto was responsible for creating the Monkey Selfies. Compl. ¶ 1–2. 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 Selfies—i.e., that 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 Does Not Exclude Animals As Slater recognizes in his motion, there is nothing unreasonable about granting standing to animals: “To be sure, there are quite reasonable arguments for conferring legal standing for animals (via human ad litem representatives) in some areas of law…” (Doc No. 3:8-9.) In other words, the fact that a monkey is seeking relief is not per se a reason to throw out this suit, as Slater acknowledges. And yet, none of the Defendants marshal a compelling argument that the circumstances and context of the Copyright Act mandate a finding that animals are excluded as a matter of law from being recognized as “authors.” To the contrary, because the Copyright Act does not define “author,” the statute neither includes nor excludes animals—or, indeed, corporations and other non-human persons—from its definition. Defendants incorrectly argue that the result of Cetacean should control here. However, that case involved a different statute, and as such is distinguishable. Cetacean did not hold that animals lack standing to sue in federal court. Rather, Cetacean held that standing depends on whether the statute under which the case is brought gives animals standing. In Cetacean, the Ninth Circuit considered whether animals can sue the United States under the Administrative Procedures Act to enforce the provisions of the Endangered Species Act. 386 F.3d at 1176. After Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 14 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 8 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS recognizing that nothing under Article III of the Constitution prevents animals from having standing to sue, the court concluded that the plain text of those specific statutes do not grant animals standing, because both statutes explicitly limited the definition of a “person” with standing to only include “‘an individual, partnership, corporation, association, or public or private organization other than an agency.’” Id. at 1178 (quoting 5 U.S.C. §§ 551(2), 701(b)(2)). In contrast, the Copyright Act has no definitional limitation. In drafting the Copyright Act, Congress intentionally chose not to define “author” but instead adopted the broad judicial definition that had been in place since at least the 19th century. See H. Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976), reprinted in Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 909 n.7 (2d Cir. 1980) (“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.”). Defendants point out that the Copyright Act does not expressly grant standing to animals. But Congress did not provide any express definition at all. That definition was already in place, and it had been stated in the broadest terms. Moreover, the Copyright Act expressly provides that not all authors will be human. For example, the Copyright Act provides that if a work is created by an employee, then “the employer . . . is considered the author.” 17 U.S.C. § 201(b). Under this statute, the title “author” does not begin with the creator and then pass to the employer; rather, the rights of authorship vests initially with the employer 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). Thus, in instances where the employer is a corporation, the corporate employer is the author under the statute. See Playboy Enterprises Inc. v. Dumas, 53 F.3d 549, 565 (2d Cir. 1995) (“Playboy is the ‘author’ of those works and owns their copyrights”); Imperial Toy Corp. v. Goffa Int’l 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”). Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 15 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 9 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS The Copyright Act 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 author’s identity. See 17 U.S.C. § 409(3). Thus, Congress explicitly bestowed copyrights even where the author is not identified, leaving no statutory impediment for a human to register an anonymous work on behalf of an animal author. See id. Indeed, there is no reason to doubt that the Copyright Office would have registered the Monkey Selfies if they had been presented as the work of an anonymous author, or by its Next Friends. In allowing both corporate authors and anonymous authors, the Copyright Act stands in stark contrast to how Congress decided to provide for other intellectual property rights, such as patents. Under the Patent Act, the “inventor”—i.e., patent law’s equivalent of a copyright “author”—specifically excludes corporations and other non-natural persons. See 35 U.S.C. § 100(f) (“The term ‘inventor’ means the individual . . . who invented or discovered the subject matter of the invention.”); id. § 111(a) (only the “inventor” may submit a patent application). Thus, if Congress wanted to exclude non-human authorship rights, it knew how to do so and would have enacted parallel features into the Copyright Act. The legislative history of the Copyright Act of 1976 supports the conclusion that animals may be authors. Just because no prior case has sought (and no court has previously granted) copyright protection on behalf of the animal is hardly dispositive, as Defendants erroneously argue. Members of 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. 94-1476, 51, 1976 U.S.C.C.A.N. 5659, 5664. “Authors are continually 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 of authorship fixed in a tangible medium of expression, now or later developed . . . .” 17 U.S.C. § 102(a) (emphasis added). That historical context and legislative intent is a “critical tool of . . . interpretation” to “determine the public Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 16 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 10 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS understanding of a legal text in the period after its enactment.” D.C. v. Heller, 554 U.S. 570, 605 (2008). Defendants also argue that the Copyright Act employs “human” terms by providing for the transfer of copyrights to the “children” and the “widow or widower” of an author. See 17 U.S.C. §§ 101, 203, and 304. Providing for the inheritance rights of authors 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. By recognizing that corporations can be authors, the Copyright 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 would—like Naruto—never 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 none of those questions is currently before the Court. PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (noting the “cardinal principle of judicial restraint”: “if it is not necessary to decide more, it is necessary not to decide more”). The sole question is whether Naruto fits the definition of “author.” He does. C. The Copyright Act Must Be Interpreted Broadly The Supreme Court emphasizes that the Copyright Act must be interpreted broadly to achieve the purpose on which it is based. The purpose of the Copyright Act is written in the Constitution itself, which instructs Congress to pass laws to “promote” the “Arts” by protecting the “Writings” of “Authors.” Const. Art. I, Sec. 8; see also Goldstein, 412 U.S. at 561. 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.” Id. Thus, after its invention, the Supreme Court had no doubt that photographs were “Writings,” even if not actually written, because “Writings” is “susceptible of a more enlarged definition.” Burrow-Giles Lithographic, 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 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 17 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 11 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS exist, as photography, as an art, was then unknown.” Id. Failing to recognize animals as “authors”—even if animal-created art was “unknown” until recent times—would impermissibly curtail the broad scope of the Copyright Act and prevent it from reaching its constitutionally mandated goals. Defendant Blurb argues that Naruto cannot be an author, because Naruto “cannot arrange for public display of a photograph, advertise it for sale, have it reproduced, negotiate a license agreement, or sell it at a gallery, at auction or on the Internet.” (Doc. No. 6 at 12-13.) These facts are irrelevant to the definition of “author” under the Copyright Act. Human children—and even certain incapacitated adults—can do none of those things, but they are still “authors” under the Copyright Act. See generally Notes of Committee on the Judiciary, H. Rep. No. 94-1476, 126 (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 (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). Defendant Blurb also cynically asks, “What does a monkey care if its photograph is displayed or used or sold?” (Doc. No. 24 at 6:19-20.) That question misses the point. The purpose of the Copyright Act is to protect the “general benefits derived by the public from the labors of authors.” Sony Corp. of Am., 464 U.S. at 429. Congress promotes those “general benefits” by granting copyright protection “to induce release to the public of the products of [the author’s] creative genius.” United States v. Paramount Pictures, 334 U.S. 131, 158 (1948); see also Eldred, 537 U.S. at 190 (“[D]isclosure is the desired objective of the author seeking copyright protection.”). “The monopoly created by copyright thus rewards the individual author in order to benefit the public.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546 (1985). If animals cannot be authors, there is no copyright protection for their works. 17 U.S.C. §§ 102(a), 201(a). The Copyright Act only applies to “original works of authorship fixed in a tangible medium.” Id. at § 102(a) (emphasis added). Moreover, “[t]hat fixation must be done ‘by Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 18 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 12 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS or under the authority of the author.’” Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir. 2015) (quoting 17 U.S.C. § 101). Without an author, there can be no “fixation,” no “work of authorship,” and thus, no copyright. Id.; see also Cmty. for Creative Non-Violence, 490 U.S. at 737 (“As a general rule, the author is the party . . . who translates an idea into a fixed, tangible expression entitled to copyright protection.”). Thus, if an animal cannot be an “author,” then any work which “owes its origin” to an animal will not have copyright protection. See Garcia, 786 F.3d at 741; see also Burrow-Giles Lithographic, 111 U.S. at 58. Such a result is antithetical to the public interest, and hence, the intent of the drafters of the Copyright Act. There is no doubt that the general public has a tremendous interest in animal art, which is why Defendants seek to profit from the photographs (and to bar others from doing so), while ignoring the question as to whether they have any claim of ownership. To turn Defendant Blurb’s question on itself, it is quite obvious why it (and Mr. Slater) care if the photograph is displayed or used or sold, and why they seek to avoid the consequences of profiting from works that they cannot claim to own, and which they do not claim to own in response to this suit. But even if Defendants do not claim a right to the Monkey Selfies, leaving the images to the public domain—as insinuated by Blurb—is fundamentally at odds with the Copyright Act. The statute itself makes it clear 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., Inc. v. Hitachi Data Sys. Corp., No. C 93-20079 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). The only requirement is that the work must be original. See § 17 U.S.C. § 102(a). There is no reason to add a judicially-created exception to the Copyright Act’s broad scope that carves out animal-created works. The historical antecedents of such an ownership lacuna cannot be the intended result.3 3 For example, 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 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 19 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 13 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS At this stage of the proceeding, the sole question is whether Naruto is an “author” within the meaning of 17 U.S.C. § 201(a). Given the plain reading of the statute, the purposes for which the Copyright Act was created, and Defendants’ own acknowledgment that copyright protection is necessary under the circumstances, that question should be answered in the affirmative. D. No Authority Has Addressed Animal Authorship The fact that a right has not been previously asserted does not mean that it cannot be asserted: “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” Obergefell v. Hodges, 135 S.Ct. 2584, 2602 (2015). Defendants cite cases that, unsurprisingly, discuss copyright in human terms, such as referring to an author as a “man.” 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.” Burrow-Giles Lithographic, 111 U.S. at 58. Importantly, none of the cases Defendants cite considered the possibility of an animal author. Thus, any reference to authors as “humans” is dicta; nor does it indicate how those courts would rule if presented with the question at issue 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.’”) (quoting Best Life Assur. Co. v. Comm’r, 281 F.3d 828, 834 (9th Cir. 2002)). Indeed, the only time that the Ninth Circuit has ever considered the possibility of a non- human author, the court expressly 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 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. (2007) (citing Yancy, “Four Black Inventors with Patents,” 39 NEGRO HIST. BULL. 574, 574 (1976)). Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 20 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 14 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997) (citing Arthur R. Miller, “Copyright Protection for Computer Programs, Databases, and Computer–Generated Works: Is Anything New Since CONTU?,” 106 HARV. L. REV. 977 (1993)). Defendants cite Urantia Foundation simply because the court stated that the divine works of celestial beings are only copyrightable by the “first human beings” who record their works. Id. But the Ninth Circuit did not hold that only humans could be authors. The court merely observed that authorship by celestial beings cannot be proven, and that even celestially inspired words need “worldly” hands to record them. Id. However, 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 the Ninth Circuit, it remains an open question. The only requirement articulated by the court so far is that the “author” be of this world. See id. Finally, Defendants cite the Compendium of the U.S. Copyright Office Practices, Third Edition (Dec. 22, 2014). The Compendium states that human authorship is a requirement for registering a copyright with the U.S. Copyright Office. However, 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 does not explain how it reaches the conclusion that animal- created works cannot be registered. It cites only 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 Burrow- Giles Lithographic, 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, these 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 Naruto’s photographs were copied from any third party. They are original— Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 21 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 15 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS otherwise 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 will—by its very nature—be 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). More recently, the Ninth Circuit observed that Judge Hand’s 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 (1992); see also Ets–Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074 (9th Cir. 2000) (“Indeed, the idea that photography is art deserving [copyright] protection reflects a longstanding view of Anglo–American law.”). Thus, while it may seem unusual to grant a monkey a copyright to a photograph, not doing so would itself depart from well-established norms. 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.”) This Court is not bound by the Compendium. 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 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 22 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 16 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Register of Copyrights or U.S. Copyright Office staff.” Compendium at p. 2. 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, 946–47 (2d Cir. 1975) (citing DeSylva v. Ballentine, 351 U.S. 570, 577-78 (1956)). 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 agency’s] 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 . . . .” 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 agency’s care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency’s position”). Here, it is evident that the drafters of the Compendium gave the question of animal authorship little consideration and no reasoned explanation to support their 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, 661-62 (M.D. Penn. 2005) (holding that because letters from the Copyright Office did not indicate the source of the interpretation or the manner in which it was reached, and did not include a rationale or explanation for the agency’s construction of the statute, “their value as persuasive authority, and the deference owed to the agency’s interpretation, is thus substantially limited”). Moreover, the Compendium’s 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 Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 23 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 17 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS was enacted. For these reasons, the Copyright Office’s refusal to register animal-created works “should not be given controlling weight,” Bartok, 523 F.2d at 946–47, if any weight at all. E. The Complaint Alleges A Concrete, Redressable Injury In addition to standing under the Copyright Act, Naruto satisfies the constitutional requirements for standing, which require a redressable “injury in fact.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The Copyright Act itself identifies the injury necessary to bring a claim: there must be an “infringement” of “an exclusive right under a copyright.” 17 U.S.C. § 501(b). Those exclusive rights are also listed in the statute. See 17 U.S.C. § 106; see also Perfect 10, Inc. v. Amazon, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007) (plaintiffs “must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106”). Here, Naruto alleges that Defendants “displayed, advertised, reproduced, distributed, offered for sale, and sold copies of the Monkey Selfies.” Compl. ¶ 43. For example, Naruto alleges that Defendants are reproducing the Monkey Selfies in a book that the Defendants are offering for sale at present. See id. at ¶ 4. All of this conduct violates Naruto’s exclusive right to “reproduce the copyrighted work.” 17 U.S.C. § 106(1). Thus, Naruto alleges an “injury in fact.” Likewise, that injury is redressable. Again, the Copyright Act specifically identifies the remedies that are available, including injunctive relief (§ 502), monetary damages (§ 504), and costs and attorney’s fees (§ 505); see Sony Corp., 464 U.S. at 430 (“The remedies for infringement are only those prescribed by Congress.”). Each of these remedies is requested in the complaint’s prayer for relief. See Compl. at pp. 9–10. Defendants incorrectly argue that Naruto cannot be injured because Naruto on his own would never have published the photographs. Standing under the Copyright Act does not require that the author intend to publish the work himself. 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.’”) (quoting Chicago Bd. of Educ. v . Substance, Inc., 354 F.3d 624, 627 (7th Cir. 2003)) (internal alterations omitted); Worldwide Church of God v. Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 24 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 18 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS Philadelphia Church of God, Inc., 227 F.3d 1110, 1115 (9th Cir. 2000) (“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 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, the Ninth Circuit held that copyright protection extended to wedding photographs that were taken solely “for the couple’s private use,” even though the photographs would have never been published or earned a single dollar but for the infringing party. Id. F. This Court Should Not Rule On The Merits Defendants impermissibly ask the Court to rule on the merits of this case by considering evidence outside the scope of the pleadings. First, Defendants suggest that the complaint should be dismissed because there is no evidence that Naruto is the monkey who took the photograph. That argument is both incorrect and premature. On a motion to dismiss, the Court must “accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs.” Warren, 328 F.3d at 1139. Similarly, when reviewing whether a plaintiff has standing, the court must assume that on the merits the plaintiff would succeed on those claims. Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008). Here, the complaint alleges that Naruto is the individual who took the Monkey Selfies “using a camera left unattended by defendant David John Slater” that “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Slater, resulting in original works of authorship not by Slater, but by Naruto.” Compl. ¶¶ 1–2. Defendants self-servingly point to portions of the book that they themselves published, which is quoted in the complaint, where Slater incorrectly describes Naruto as “female.” Defendants argue this “contradiction” alleviates the deference the Court must give the allegations of the complaint: an odd circumlocution of the pleading standards, given that Defendants seek to use their inability to correctly identify the gender of Naruto as a basis to deny him any relief. (In Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 25 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 19 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS each instance where Slater is quoted, the complaint indicates that Slater’s use of the female pronoun was incorrect by including in the quotation the modifier “[sic]”. Compl. ¶ 7.) Moreover, there is no doubt that, as stated in the complaint, Naruto is the macaque in the Monkey Selfies. For nearly a decade, Naruto’s next friend Dr. Engelhardt and her team have closely studied Naruto and his kin in their natural habitat. “Naruto and his matrilineal family are an integral part of the crested macaque population Dr. Engelhardt studies.” Compl. ¶ 4. In the course of that work, “Dr. Engelhardt and those with whom she works have known, monitored, and studied Naruto since his birth.” Id. Accepting these allegations as true, the Court must assume that Naruto is the macaque in the photograph. Second, Blurb asks the Court to rule on the merits of the case to determine whether, as a result of Blurb’s alleged terms of service, Blurb can be held liable for infringement. Blurb’s terms of service and the purported truth of the matter stated therein are not alleged anywhere in the complaint and are not the proper subject of judicial notice. See United States v. Kane, 2013 WL 5797619, at *9 (D. Nev. Oct. 28, 2013) (“When a court takes judicial notice of publications like websites and newspaper articles, the court merely notices what was in the public realm at the time, not whether the contents of those articles were in fact true.”) To the contrary, the complaint alleges that “Slater and Defendant Blurb . . . published and sold for profit a book in the United States containing copies of the Monkey Selfies.” Compl. ¶ 4. That allegation alone, if proven, is sufficient to hold Blurb legally responsible for copyright infringement. See 17 U.S.C. §§ 106(1); 501(b); Perfect 10, 508 F.3d at 1159. Thus, Naruto properly states a claim against Blurb. The Court “should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader’s suppositions.’” McGary v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (quoting Elec. Constr. & Maint. Co., Inc. v. Maeda Pac. Corp., 764 F.2d 619, 623 (9th Cir.1985)). “This is in part because further facts may make it unnecessary to decide the hard case but also because the facts are likely to contribute to a more sensitive assessment of what the law ‘is’ (which, absent decisive precedent, means what it ‘should be’).” Doe v. Walker, 193 F.3d 42, 46 (1st Cir. 1999); see also Thomas v. New York City, Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 26 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5114200 - 20 - PLAINTIFF’S OPPOSITION TO MOTIONS TO DISMISS 814 F. Supp. 1139, 1152 (E.D.N.Y. 1993) (“In light of the novelty of this claim and the fact that the parties have not adequately developed the factual record for it, the Court declines to dismiss this claim on the pleadings and in all likelihood will require a full trial record on which to determine the issue.”). In their motions, Defendants not only attack the veracity of the allegations, they also invite the Court to consider legal questions—such as how Naruto’s copyright should be managed—that are not yet ripe. It is true that non-human authorship raises many questions, some of which may later be addressed in this proceeding, and some of which will not. At present, however, the Court is faced with a single, limited question: whether Naruto is an author under the Copyright Act. As the Ninth Circuit has cautioned, in answering this question, the Court should avoid summarily dismissing a claim simply because it is novel and before it can be considered in light of the evidence. See McGary, 386 F.3d at 1270. V. CONCLUSION 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 works—and, self-evidently, so do the Defendants. For there to be any copyright protection in Naruto’s works at all, the Copyright Act requires that Naruto be classified as their author. Dated: December 4, 2015 Respectfully submitted, IRELL & MANELLA LLP David A. Schwarz PETA FOUNDATION Jeffrey S. Kerr Matthew Strugar Martina Bernstein By: /s/ David A. Schwarz David A. Schwarz Attorneys for Plaintiff Case 3:15-cv-04324-WHO Document 31 Filed 12/04/15 Page 27 of 27