Blind to the argument
But PETA has an answer for that: because this action is between private parties and does not involve the federal government, the language that specifically talks about human beings does not apply. And it used a case from the Ray Charles Foundation – you know, the author of Hit the Road, Jack and I Got a Woman – to make its point.
To say this left David Slater's attorney baffled would be an understatement. Asked for counter arguments to the Ray Charles case, Andrew Dhuey just shook his head. "I did my best to understand it," he confessed. "But I don't see what Ray Charles has to do with anything..." he trailed off.
Dhuey instead complained that the case was wasting judicial resources in having to "keep arguing what are really obvious principles" – namely that animals should not have copyright protections.
Dhuey's colleague made the same point: that copyright is a "purely human construct," the purpose of which was "to make sure works are disseminated with a limited monopoly so the owner can benefit financially."
But, she pointed out, "Naruto can't benefit financially – he's a monkey," adding, "PETA would like to benefit..."
As for PETA claiming Next Friend status, she argued that aside from the fact that it has no relationship to Naruto (Schwartz says PETA has sent people to Indonesia to go see the monkeys), it has undermined any effort to gain that status by using the case to "pursue its own agenda" rather than act on behalf on Naruto. "The Supreme Court said a Next Friend can't do that – pursue their own agenda – no matter how noble," she noted.
She also argued that the only way the picture came to light in the first place was because her client – a professional wildlife photographer – took his camera to the other side of the world, developed the film and put the pictures out there.
Is "ooh-ooh" a yes, or a no?
Even if the court decides that a monkey does have standing, she noted, how can that monkey grant a license for use or grant permission for his image being used?
You can only imagine the flood of lawsuits that would land on David Attenborough for his willful infringement of thousands of animals' privacy over the course of his career.
But back to the issue of whether animals can hold a copyright. PETA points out that corporations are not people, yet they can hold copyright. To which the opposing lawyers pointed out that it was specifically decided by the Supreme Court. So far, there has been no Supreme Court decision that animals are people.
Anyway, by this stage, PETA's lawyer knew he had lost the argument resoundingly and so started arguing to be given leave to file an amended complaint, rather than have it vacated with prejudice – something that the judge explicitly threatened to do.
The judge even asked Slater's lawyer, Dhuey, what result he would like to see. He said a decision that animals have no standing to sue over the copyright act and that this case was an inappropriate use of federal courts (which would see his client get back his legal costs).
The judge warned: "If we vacate the judgment a new suit may be brought by Naruto through a Next Friend properly pleaded."
In other words, if PETA can dig out someone else living at the monkey sanctuary in Indonesia who is willing to act on Naruto's behalf, Slater could be sued all over again.
That seems a little unlikely given Dr Engelhardt's experience, but even so, it would leave the issue of whether a monkey can hold copyright undecided. Dhuey presumably sees that as someone else's future problem and simply wants his client taken off this crazy case rather than face a possible appeal to the Supreme Court.
"What I would hope is that PETA stops and leaves my client alone," he moaned.
Meanwhile, in Indonesia, Naruto the crested macaque doesn't give a single, solitary fuck. ®