A monkey, an animal-rights organization and a primatologist walk into federal court . . .

Patent Litigator Andy Dhuey is also representing Photographer David John Slater who has been sued by the monkey Naruto for copyright infringement. In the 9th Circuit Brief, Dhuey writes:

A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the setup for a punchline isreally happening. It should not be happening. Under Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), dismissal of this action is required for lack of standing and failure to state a claim upon which relief can be granted. Monkey see, monkey sue is not good law – at least not in the Ninth Circuit. 

32 thoughts on “A monkey, an animal-rights organization and a primatologist walk into federal court . . .

  1. 8

    Somewhere on the Internet:

    On November 5, 2015, patent owner Retirement Capital Access Management Company LLC filed the most important cert petition this term. This bold effort squarely presents a question circling around academic circles for years: whether the USPTO has the authority to address section 101 (subject matter eligibility) within Covered Business Method (CBM) reviews….

    There are those who will contend that such jurisdictional review is dead on arrival.

    That’s because it is dead-on-arrival.

    1. 8.1

      MM, one wonders why they fight at all given the handwriting on the wall. Here are the claims at issue:

      1. A computerized method for creating a source of funds based on present value of future retirement payments, comprising the steps of:

      a. designating an account in a depository for a beneficiary to receive future retirement payments payable to said beneficiary from a source of said retirement payments for a preselected period of time;

      b. designating a benefit provider for providing a monetary benefit to said beneficiary;

      c. authorizing said depository to periodically disburse a predetermined portion of said retirement payments deposited in said account to said benefit provider during said preselected period of time;

      d. providing said monetary benefit to said beneficiary from said benefit provider based at least in part on present value of a designated portion of said future retirement payments without encumbering said beneficiary’s right to said future retirement payments and without violating legislated proscriptions in the United States against alienation of future retirement benefits;

      e. causing said future retirement payments to be deposited into said account throughout said preselected period of time;

      f. causing said depository to transfer a portion of said retirement payments deposited into said account to said benefit provider during said preselected period of time; and

      g. reimbursing said benefit provider from resources other than said future retirement payments if said transfer of a portion of said retirement payments from said depository to said benefit provider are curtailed prior to said end of said preselected period of time, and making said retirement payments available for the exclusive use of said beneficiary.

  2. 7

    link to cafc.uscourts.gov

    From the dissent:

    [The majority holds that] a patent related to quality control testing cannot be
    infringed under § 271(g), which states, “[w]hoever without
    authority imports into the United States or offers to sell,
    sells, or uses within the United States a product which is
    made by a process patented in the United States shall be
    liable as an infringer.” 35 U.S.C. § 271(g) (2012) (emphasis
    added). Quality control, according to the majority, is
    not used to “make” a product. This seems to me too limited
    a construction of § 271(g).

    1. 7.1

      That was an interesting case. I am suprised the question about what “made by a patented process” means wasn’t raised earlier.

      I think the majority got it right though. You have to draw the line somewhere.

      Let’s say the foreign company uses patented logic to control the temperature in the various rooms of the giant building where the drug is made. Without that temperature control, nothing will get accomplished! Does that mean that the imported drug was “made by” the logic used to control the building temperature? According to the dissent, the easy answer (“heck no”) may be “too limited.”

      1. 7.1.1

        Courts need to draw the line somewhere. E.g., United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). link to scholar.google.com

        Then we have today’s ruling in the 5th Circuit, link to ca5.uscourts.gov. that held Texas had standing based to challenge the Obama executive order on Immigration based on Mass. v. EPA:

        “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007).”

        “The Court held that Massachusetts had standing to contest the EPA’s decision not to regulate greenhouse-gas emissions from new motor vehicles, which allegedly contributed to a rise in sea levels and a loss of the state’s coastal land. Massachusetts v. EPA, 549 U.S. at 526. ”

        “The states may not be able to discriminate against subsets of aliens in their driver’s license programs without running afoul of preemption or the Equal Protection Clause…”

        “If permitted to go into effect, DAPA would enable at least 500,000 illegal aliens in Texas55 to satisfy that requirement with proof of lawful presence or employment authorization. …”

    1. 6.1

      I like how the majority just cuts to the chase in the second paragraph.

      We recognize, of course, that electronic transmissions have some physical properties—for example an electron’s invariant mass is a known quantity—but commonsense dictates that there is a fundamental difference between electronic transmissions and “material things.” Our analysis is therefore complete.

      It really is that easy sometimes.

      O’Malley also hits the nail on the head:

      The Commission has concluded that it has jurisdiction over all incoming international Internet data transmissions. It reaches this conclusion despite never having purported to regulate Internet transmissions in the past, despite no reference to data transmissions in the statute under which it acts, despite an absence of expertise in dealing with such transmissions, and despite the many competing policy concerns implicated in any attempt to regulate Internet transmissions. The Internet is “arguably the most important innovation in communications in a generation.” Comcast Corp. v. FCC, 600 F.3d 642, 661
      (D.C. Cir. 2010). If Congress intended for the Commission to regulate one of the most important aspects of modernday life, Congress surely would have said so expressly.

    2. 6.2

      Newman, of course, is out to lunch:

      Patents are for things that did not previously exist, including kinds of technology that were not previously known.

      The use of signals to transmit data across borders is really, really, really old. Can someone please find Newman some better clerks?

  3. 5

    So the next time a pit bull maws and kills a person, we should put the pit bull on trial for murder.

    I get the feeling that the more the rights under the Constitution are extended to things that aren’t people (corporations and animals) that the less human we humans become.

    Sorry I didn’t have the time to monkey around for puns.

    1. 5.1

      I get the feeling that the more the rights under the Constitution are extended to things that aren’t people (corporations and animals) that the less human we humans become.

      Except corporations are just collections of people, which is why they have free speech rights.

      1. 5.1.1

        In fact a corporation is a legal entity not a person and not a collection of people. And, in fact, the founders were afraid of corporations and thought they should be limited. And in fact there are actually old cases that make it very clear that the founders thought that corporations needed to be kept small and inherently were a threat to liberty. (And, anyone that understands our legal systems knows that corporations are threat to liberty because they are like a large government. They can bring to bear far greater resources than an individual.)

        That is reality. I cannot even believe that anyone could think anything differently. Seriously, you think these giant people with resources that rival governments should be able to exist and fight you in court? Really?

      2. 5.1.2

        And actually this is related to Alice. Citizens united is extending personhood to a legal entity that is not in the Constitution. This is similar to Alice in that Alice creates this word “abstract” and then acts as if it is added to the Constitution. So, in both cases we have these extensions of the Constitution by the SCOTUS. Both Alice and Citizen’s United should be overruled.

    2. 5.2

      extended to things that aren’t people (corporations and animals) that the less human we humans become.

      Don’t forget that machines can have “thoughts” and mental steps too…

      /off sardonic bemusement

  4. 4

    What bothers me about Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004) is its assumption that animals have Article III standing. link to scholar.google.com

    Catacean discusssed an earlier case involving a bird, Palia, that it “held” did have statutory standing.

    In Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106, 1107 (9th Cir.1988) (“Palila IV”), a suit to enforce the ESA, we wrote that an endangered member of the honeycreeper family, the Hawaiian Palila bird, “has legal status and wings its way into federal court as a plaintiff in its own right.” Id. We wrote, further, that the Palila had “earned the right to be capitalized since it is a party to these proceedings.” Id

    If Article III is no barrier, and I think it clearly is, then the whole case depends upon whether an animal can own anything, for if it cannot, then it cannot own a copyright right. If it can own a copyright, it clearly has statutory standing as a copyright owner.

    It is one thing to protect an animal against actions by humans. It is quite another to treat them as humans. The motion to dismiss sounds in Article III while nominally being based on a mere technicality.

    1. 3.1

      You were thinking, 6, of constitutional standing.

      Surely, you would agree, that the register owner of a copyright can sue for infringement.

      I would not dismiss on “this” motion.

      1. 3.1.1

        There’s also the question of whether PETA has standing to act as the monkey’s next friend. Considering that the monkey is a wild animal living in Indonesia, and they don’t even have custody of it, this would seem to be a huge roadblock to their suit even before getting to the question of whether the monkey would have standing or not.

  5. 2

    The plaintiffs’ case is really macaqued up. Do they even have any evidence that’s proboscis?

    Anyway, as I don’t have Andrew’s email, I’ll say here that he proves again he’s the balls, and I offer to buy him a capuchin-o the next time I’m in SF.

  6. 1

    A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright.

    Nobody is going to show up for that because the court is in rhesus.

    1. 1.1

      That’s really funny, MM. As it happens, the “monkey see, monkey sue” line was from a contributor to another IBB I participate in. I promptly gave him co-author credit in that forum, and I would do so here, if only I knew his real name.

      1. 1.1.1

        I’m disappointed to not see a motion referencing Rule 11 or 28 U.S.C. § 1927. This lawsuit is a political and fundraising stunt, and the plaintiffs and their “attorneys” should have to answer for it. Although I guess that wouldn’t not be PC, especially in CA. PETA might be populated by naive dogooders (I don’t believe that, but it’s a plausible excuse), but the attorneys who filed the suit have no excuse.


          There’s always 17 USC 505. I only hope that Mr. Dhuey charges an exorbitant hourly rate.


            I have, but perhaps you can point me to the bit where it says that a) Congress granted a Monkey standing to sue for copyright infringement, and b) this particular Monkey has any non-frivolous claim of copyright in any image whatsoever. If you’ve read the briefing, the Monkey-plaintiff isn’t even the same monkey that’s in the picture.


              ID, you seem to be adding something to the statue that is not there. The statute does not limit statutory standing to particular kinds of copyright owners.


                Ned – it is not something added – it is something missing.

                Law is for humans – animals are classified as chattel.

                Chattel rights are not human rights.

                Let’s just stop the silliness before you extend human characteristics to thing such as machines (lol, that’s right, I went there: anthropomorphication).


                You’ve got me confused. You pointed me to a case that says an animal can have standing under an act of congress if congress intended for the animal to have standing under the act. So point me to the part of the Copyright Act where it suggests congress intended for animals to have standing. Then explain how this particular monkey came to own the copyright in this particular photograph.


                1. The case stands for the proposition that there is no constitutional problem with nonhumans having standing.

                  There is no doubt that the registered owner of a copyright has statutory standing.

                  Therefore, there is no basis for granting the motion to dismiss on some theoretical requirement that the registered copyright owner has some additional congressional authorization to sue in addition to being a registered copyright owner.

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