Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 1 of 16 1 2 3 4 COOLEY LLP JESSICA VALENZUELA SANTAMARIA (220934) (jsantamaria@cooley.com) ANGELA L. DUNNING (212047) (adunning@cooley.com) JACQUELINE B. KORT (284370) (jkort@cooley.com) 3175 Hanover Street Palo Alto, CA 94304-1130 Telephone: (650) 843-5000 Facsimile: (650) 849-7400 5 6 Attorneys for Defendant BLURB, INC. 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10 11 13 NARUTO, a Crested Macaque, by and through his Next Friends, PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., and ANTJE ENGELHARDT, Ph.D., 14 Plaintiffs, 12 15 16 17 18 19 Case No. 15-cv-04324 (WHO) DEFENDANT BLURB, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT FOR COPYRIGHT INFRINGEMENT; MEMORANDUM OF POINTS AND AUTHORITIES v. DAVID JOHN SLATER, an individual, BLURB, INC., a Delaware corporation, and WILDLIFE PERSONALITIES, LTD., a United Kingdom private limited company, Defendants. Date: Time: Courtroom: Judge: Trial Date: January 6, 2016 2:00 p.m. 2, 17th Floor Hon. William H. Orrick Not Yet Set COMPLAINT FILED: SEPTEMBER 21, 2015 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW PALO ALTO BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 2 of 16 1 TABLE OF CONTENTS 2 PAGE 3 NOTICE OF MOTION AND MOTION TO DISMISS ..................................................................1 4 STATEMENT OF RELIEF SOUGHT ............................................................................................1 5 STATEMENT OF ISSUES TO BE DECIDED ..............................................................................1 6 MEMORANDUM OF POINTS AND AUTHORITIES .................................................................2 7 I. INTRODUCTION ...............................................................................................................2 II. STATEMENT OF RELEVANT FACTS AND ALLEGATIONS......................................2 8 9 A. Defendant Blurb .......................................................................................................2 B. Defendant Slater and Wildlife Personalities ............................................................3 C. The Monkey Selfies .................................................................................................3 D. The Lawsuit .............................................................................................................4 10 11 12 13 III. LEGAL STANDARDS .......................................................................................................4 14 A. Dismissal for Lack of Standing (Rules 12(b)(1) and 12(b)(6)) ...............................4 B. Dismissal for Failure to State a Claim (Rule 12(b)(6))............................................5 15 16 IV. ARGUMENT .......................................................................................................................6 17 A. The Complaint Should Be Dismissed for Lack of Article III Standing ...................6 B. The Complaint Should Be Dismissed for Lack of Statutory Standing ....................8 C. The Complaint Should Be Dismissed as to Blurb for Failure To State a Claim ...11 18 19 20 V. CONCLUSION ..................................................................................................................12 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW PALO ALTO i. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 3 of 16 1 TABLE OF AUTHORITIES 2 PAGE 3 Cases 4 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................5, 6 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................................................................5 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) ................................................................................................................8, 10 Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004)...................................................................................4, 5, 8, 9, 10 Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115 (9th Cir. 2010).................................................................................................4, 7 Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010).......................................................................................................6 Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) ....................................................................................................................4 Fox Broad. Co., Inc. v. Dish Network L.L.C., 747 F.3d 1060 (9th Cir. 2014 ....................................................................................................11 Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015)...................................................................................................8, 9 Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038 (9th Cir. 2014).....................................................................................................8 20 21 22 23 24 Lujan v. Defs. of Wildlife, 504 U.S. 555........................................................................................................................4, 6, 7 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)...................................................................................................11 Perfect 10, Inc. v. Giganews, Inc., No. CV11-07098-AHM (SHx), 2013 WL 2109963 (C.D. Cal. March 8, 2013) ......................11 25 26 27 28 In re Rigel Pharms., Inc. Sec. Litig., 697 F.3d 869 (9th Cir. 2012).......................................................................................................5 Rosen v. eBay, Inc., No. CV 13-6801 MWF, 2015 WL 1600081 (C.D. Cal. Jan. 16, 2015) ...........................................11 COOLEY LLP ATTORNEYS AT LAW PALO ALTO ii. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 4 of 16 1 TABLE OF AUTHORITIES (CONTINUED) 2 3 4 5 6 7 8 9 10 11 12 13 PAGE Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ..............................................................................................................4, 5, 6 Tilikum v. Sea World Parks & Entertainment, Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012) .................................................................................7, 11 Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir. 1997).....................................................................................................10 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003).................................................................................................5, 7 Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004).......................................................................................................5 Other Authorities Federal Rule of Civil Procedure 12(b)(1) ............................................................................................................................. passim 12(b)(6) ............................................................................................................................. passim 14 15 16 17 U.S Const., Art I, § 8, Clause 8 .........................................................................................................8 The Copyright Act of 1976 17 U.S.C. § 101 et seq. ................................................................................................................8 17 U.S.C. § 106 .....................................................................................................................9, 11 17 U.S.C. § 201(a) ....................................................................................................................11 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW PALO ALTO iii. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 5 of 16 1 NOTICE OF MOTION AND MOTION TO DISMISS 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on January 6, 2015 at 2:00 p.m., or as soon thereafter as 4 this motion may be heard in Courtroom 2, 17th Floor, of the above-entitled court, located at 450 5 Golden Gate Avenue, San Francisco, California, defendant Blurb, Inc. (“Blurb”) will and hereby 6 does move, under Federal Rules of Civil Procedure (“Rules”) 12(b)(1) and 12(b)(6), to dismiss 7 the Complaint for Copyright Infringement (the “Complaint”) filed on behalf of Naruto, a crested 8 macaque (“Plaintiff”), by and through his Next Friends People for the Ethical Treatment of 9 Animals, Inc. (“PETA”) and Antje Engelhardt, Ph.D. (together, “Next Friends”) on September 10 21, 2015. This motion is based on this Notice of Motion; the accompanying Memorandum of 11 Points and Authorities, Request for Judicial Notice (“RJN”), and Declaration of Angela L. 12 Dunning with exhibits thereto (“Dunning Decl.”); the pleadings and papers on file in this matter; 13 and such other matters as may be presented to the Court at the hearing. 14 15 16 STATEMENT OF RELIEF SOUGHT Defendants seek dismissal of the Complaint under Rules 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim. 17 18 STATEMENT OF ISSUES TO BE DECIDED 1. Whether the Complaint should be dismissed for lack of subject matter jurisdiction 19 pursuant to Rule 12(b)(1) because Naruto, a monkey, lacks Article III standing to pursue a claim 20 for copyright infringement? 21 22 23 24 2. Whether the Complaint should be dismissed pursuant to Rule 12(b)(6) because Naruto lacks statutory standing to pursue a claim for copyright infringement? 3. Whether the Complaint should be dismissed pursuant to Rule 12(b)(6) for failure to plead a copyright infringement claim against Blurb? 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 1. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO)) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 6 of 16 1 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 This is a copyright case filed on behalf of a monkey. Calling themselves “Next Friends,” 4 PETA and a primatologist, Antje Engelhardt, bring this suit on behalf of Naruto, a crested 5 macaque that allegedly took photographs of himself in 2011 using Defendant David John Slater’s 6 camera (the “Monkey Selfies”). Next Friends claim that Mr. Slater and defendant Blurb violated 7 Naruto’s alleged copyright in the photographs when Mr. Slater published them in a book he made 8 using Blurb’s website. In bringing their admittedly “novel” claim, PETA and Dr. Engelhardt 9 ignore the law and abuse the judicial process. 10 As a threshold matter, Naruto lacks Article III standing to invoke the Court’s jurisdiction. 11 Even if Naruto took the Monkey Selfies (a fact contradicted by allegations in the Complaint), he 12 has suffered no injury, much less one that is redressable by this lawsuit. The U.S. Constitution 13 and the Copyright Act contemplate copyright protection only for humans. Accordingly, the 14 action should be dismissed under Rule 12(b)(1) for lack of a justiciable case or controversy. 15 Dismissal is also appropriate under Rule 12(b)(6) for lack of statutory standing and failure 16 to state a claim. The Copyright Act affords no rights or protections to animals, the courts have 17 repeatedly found that human authorship is required for copyright protection, and the U.S. 18 Copyright Office has outright rejected any assertion that Copyright Act protects “photograph[s] 19 taken by a monkey.” Accordingly, Next Friends cannot establish that Naruto owns a valid 20 copyright, much less that it was infringed by Blurb. The entire Complaint should be dismissed 21 with prejudice. 22 II. STATEMENT OF RELEVANT FACTS AND ALLEGATIONS 23 A. 24 Blurb is a Delaware corporation with its principal place of business in San Francisco, 25 California. (¶ 23.)1 Blurb provides a website that allows users to create and self-publish their 26 own beautiful, bookstore-quality books. (Ex. 1 (“About Blurb” webpage).) 27 28 Defendant Blurb 1 References herein to ¶__ and Ex. __ are to the Complaint (Dkt. 1) and exhibits to the Dunning Declaration, respectively, unless otherwise stated. COOLEY LLP ATTORNEYS AT LAW PALO ALTO 2. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 7 of 16 1 Notably, Blurb’s website contains an explicit “Disclaimer” that Blurb is not a publisher: 2 Please be aware that Blurb is a publishing services provider. We provide users with tools and services that enable them to publish their own books. We are not a publisher, and we do not review or correct user-generated content. 3 4 5 (Ex. 2 (emphasis added).) Moreover, Blurb’s “Terms and Conditions” explicitly provide that it is not a publisher: 6 7 8 9 10 11 YOU ACKNOWLEDGE AND AGREE THAT . . . BLURB IS NOT THE PUBLISHER OF YOUR BOOKS (INCLUDING YOUR BOOK CONTENT) . . . YOU REPRESENT AND WARRANT THAT YOU ARE THE PUBLISHER OF YOUR BOOK(S) (INCLUDING YOUR BOOK CONTENT) AND, IN ANY CASE, THAT YOU BEAR THE FULL AND ULTIMATE RESPONSIBILITY FOR THE PUBLICATION AND DISTRIBUTION OF YOUR BOOKS (INCLUDING YOUR BOOK CONTENT). (Ex. 3, ¶ 8.5.) 12 B. 13 Defendant David John Slater is a professional photographer, residing in the United 14 Kingdom, and the director and sole shareholder of defendant Wildlife Personalities, a private 15 limited liability company based in the U.K. (¶¶ 22, 24.) The Complaint alleges that Slater and 16 Wildlife Personalities utilized Blurb’s website to create and publish a book called “Wildlife 17 Personalities” (hereinafter, the “Wildlife Book”), containing the Monkey Selfies. (¶¶ 22–23.) Defendant Slater and Wildlife Personalities 18 C. 19 The Complaint describes Naruto as a six-year old male crested macaque monkey residing 20 on the Tangkoko Reserve on the island of Sulawesi, Indonesia. (¶ 14.) The Complaint alleges 21 that, on a visit to the Reserve in 2011, Mr. Slater left his camera unattended, whereupon Naruto 22 took the “Monkey Selfies” using Mr. Slater’s camera. (¶¶ 31–34.) However, the allegation that 23 Naruto is, in fact, the monkey who took the Monkey Selfies is contradicted by other allegations in 24 the Complaint. Specifically, in the Wildlife Book, Mr. Slater describes the monkey who took the 25 photographs as a female, not a male like Naruto: 26 27 28 The Monkey Selfies It was only a matter of time before one pressed the shutter resulting in a photo of herself. She stared at herself with a new found appreciations. . . . She also, importantly, made relaxed eye contract with herself. . . . She was certainly excited at her own appearance and seemed to know it was herself. COOLEY LLP ATTORNEYS AT LAW PALO ALTO 3. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 8 of 16 1 (¶ 34 & Compl. Ex. 4 (emphasis added).) Similarly, PETA’s own president, Ingrid Newkirk, has 2 publicly referred to the subject of the Monkey Selfies as a “female” crested macaque. (Ex. 4.) 3 D. 4 On September 21, 2015, Next Friends PETA and Dr. Engelhardt filed this lawsuit on 5 Naruto’s behalf. PETA is an animal protection not-for-profit corporation based in Virginia. (¶ 6 18.) Dr. Engelhardt is a primatologist who claims to have studied the behavior of Sulawesi 7 crested macaques. (¶¶ 19–20.) Neither claims to have been present when the Monkey Selfies 8 were taken or to have any personal knowledge or interest in the subject matter of this suit. 9 Nevertheless, PETA and Dr. Engelhardt have appointed themselves Naruto’s representatives and 10 seek by this “novel” lawsuit (¶ 5) to hold defendants liable for infringing Naruto’s purported 11 copyright in the Monkey Selfies based on allegations that Mr. Slater used Blurb’s service to 12 create and publish the Wildlife Book and thereafter sell it on Amazon.com. (¶¶ 35–38.)2 13 III. The Lawsuit LEGAL STANDARDS 14 A. 15 Article III of the U.S. Constitution limits federal jurisdiction to actual cases or 16 controversies. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102–03 (1998). “A suit 17 brought by a plaintiff without Article III standing is not a ‘case or controversy,’ and an Article III 18 federal court therefore lacks subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 19 386 F.3d 1169, 1174 (9th Cir. 2004). Article III standing addresses “whether the plaintiff is the 20 proper party to bring the matter to the court,” Chandler v. State Farm Mut. Auto. Ins. Co., 598 21 F.3d 1115, 1122 (9th Cir. 2010), and must be shown for each claim and form of relief sought. 22 Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). To satisfy the Article III standing 23 requirement, plaintiff bears the burden of showing that: (1) it has suffered a concrete injury-in- 24 fact that is (2) fairly traceable to defendants’ challenged conduct and (3) likely to be redressed by 25 a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Dismissal for Lack of Standing (Rules 12(b)(1) and 12(b)(6)) 26 27 28 2 The Complaint also alleges that Mr. Slater infringed Naruto’s purported copyright by selling and distributing copies of the Monkey Selfies via his own website and a third party website, www.picanova.com. (¶ 39.) COOLEY LLP ATTORNEYS AT LAW PALO ALTO 4. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 9 of 16 1 Where the allegations in the complaint are insufficient on their face to demonstrate the 2 injury-in-fact necessary to establish Article III standing, the court should dismiss the suit under 3 Rule 12(b)(1). Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In evaluating a facial 4 standing challenge, the Court need not “accept as true conclusory allegations which are 5 contradicted by documents referred to in the complaint” or “assume the truth of legal conclusions 6 merely because they are cast in the form of factual allegations.” 7 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). 8 In addition to Article III standing, a plaintiff seeking redress for a statutory violation must 9 establish statutory, or prudential, standing. Cetacean, 386 F.3d at 1175. Statutory standing exists 10 only “when a particular plaintiff has been granted a right to sue by the specific statute under 11 which he or she brings suit.” Id. (citations and internal punctuation omitted). “If a plaintiff has 12 suffered sufficient injury to satisfy the jurisdictional requirement of Article III but Congress has 13 not granted statutory standing, that plaintiff cannot state a claim upon which relief can be 14 granted,” and dismissal is appropriate under Rule 12(b)(6). Id. (citing Steel Co., 523 U.S. at 97). 15 B. 16 A complaint should be dismissed under Rule 12(b)(6) if it fails to allege facts sufficient to 17 state a cognizable claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 18 12(b)(6). “To avoid dismissal, the complaint must provide ‘more than labels and conclusions, 19 and a formulaic recitation of the elements of a cause of action will not do.’” In re Rigel Pharms., 20 Inc. Sec. Litig., 697 F.3d 869, 875 (9th Cir. 2012) (citation omitted). A claim must be more than 21 possible or conceivable; it must be “plausible.” Twombly, 550 U.S. at 570; see also Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009) (“Where a complaint pleads facts that are ‘merely consistent with’ 23 a defendant’s liability, it ‘stops short of the line between possibility and plausibility of 24 ‘entitlement to relief.’”) (citation omitted). The Court need not “accept as true allegations that 25 contradict exhibits attached to the Complaint or matters properly subject to judicial notice, or 26 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 27 inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); see also Iqbal, 28 556 U.S. at 679 (conclusory allegations “are not entitled to the assumption of truth”). Dismissal for Failure to State a Claim (Rule 12(b)(6)) COOLEY LLP ATTORNEYS AT LAW PALO ALTO Warren v. Fox Family 5. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 10 of 16 1 IV. ARGUMENT 2 A. 3 To establish Article III standing, “there must be alleged (and ultimately proved) an ‘injury 4 in fact’—a harm suffered by the plaintiff that is ‘concrete’ and ‘actual or imminent, not 5 ‘conjectural’ or ‘hypothetical.’” Steel Co., 523 U.S. at 103 (citing Lujan, 504 U.S. at 560). 6 Additionally, “there must be redressability—a likelihood that the requested relief will redress the 7 alleged injury.” Id. (citations omitted). The Complaint fails to establish either of these elements. The Complaint Should Be Dismissed for Lack of Article III Standing 8 The injury alleged in this case is that Naruto has been denied the right to control the sale 9 and distribution of the Monkey Selfies. (See ¶ 43 (alleging that “Defendants, in violation of 10 Naruto’s copyright, have displayed, advertised, reproduced, distributed, offered for sale, and sold 11 copies of the Monkey Selfies”).) But that alleged injury is entirely nonsensical when applied to a 12 monkey. A monkey cannot arrange for public display of a photograph, advertise it for sale, have 13 it reproduced, negotiate a license agreement, or sell it at a gallery, at auction or on the Internet, so 14 exercise of those rights by others causes no injury whatsoever. As the Supreme Court has stated, 15 “[s]tanding is not ‘an ingenious academic exercise in the conceivable,’” Lujan, 504 U.S. at 566, 16 but requires actual, concrete injury, which is plainly lacking here. 17 Also lacking is any likelihood that a favorable decision will redress Naruto’s theoretical 18 copyright injury. For instance, an injunction prohibiting publication and use of the Monkey 19 Selfies by others (Compl., Prayer for Relief ¶ (b)) would confer no benefit on Naruto; what does a 20 monkey care if its photograph is displayed or used or sold? Similarly, to the extent this lawsuit 21 seeks monetary damages (id., ¶¶ (c)–(e)), those funds would not go to Naruto to redress alleged 22 copyright infringement. 23 photographs (without Naruto’s knowledge or consent, which, as a monkey, he cannot give) and 24 spend the proceeds as they see fit on, among other things, habitat preservation for the benefit of 25 Naruto’s “community” of crested macaques. (¶ 7; Prayer for Relief ¶ (f).) That is, Next Friends 26 seek to redress a totally different problem—that of habitat loss and endangerment of crested 27 macaques in Indonesia—through the ridiculous vehicle of a U.S. copyright claim. Rather, PETA and Dr. Engelhardt want to commercialize the 28 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 6. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 11 of 16 1 In addition, the allegations in the Complaint make it far from clear that Naruto is even the 2 “proper [monkey]” to be named in this suit. Chandler, 598 F.3d at 1122. The photographs were 3 allegedly taken approximately four years ago (in or around 2011) in the Tangkoko Reserve of 4 Indonesia (an area of approximately 33 square miles), where Naruto allegedly lives in a 5 “community” of crested macaques. (¶ 31.) Naruto’s “Next Friends” do not claim to have been 6 present when the photographs were taken, and the Complaint contains no other allegations from 7 which one could plausibly infer that Naruto is, in fact, the monkey in the photographs. 8 To the contrary, allegations in the Complaint make such an inference highly implausible. 9 The Complaint alleges that Naruto is male. (¶ 14.) However, the Complaint repeatedly quotes 10 the Wildlife Book in which Mr. Slater describes the monkey that used his camera as a “she.” 11 (¶ 34(e).) Indeed, PETA’s own president, in attempting to publicize this suit, has described the 12 subject monkey as a female. (Ex. 4.) The Court need not credit Plaintiffs’ conclusory allegation 13 that Naruto took the photographs where that allegation is contradicted by other facts alleged in the 14 Complaint. Warren, 328 F.3d at 1139. And without any alleged basis to find that Naruto took 15 the Monkey Selfies, there is certainly no basis to find that he suffered any injury giving rise to 16 Article III standing. See Lujan, 504 U.S. at 563 (“[T]he ‘injury in fact’ test requires more than an 17 injury to a cognizable interest. It requires that the party seeking review be himself . . . injured.”). 18 Notably, PETA has tried this sort of stunt before, and failed. In Tilikum v. Sea World 19 Parks & Entertainment, Inc., PETA filed a claim as the “Next Friend” of five Orcas living at Sea 20 World Parks, asserting that they had been subjected to slavery in violation of the Thirteenth 21 Amendment. 842 F. Supp. 2d 1259, 1264 (S.D. Cal. 2012). In dismissing the case under Rule 22 12(b)(1) for lack of Article III standing, the court reasoned that the practices of “‘slavery’ and 23 ‘involuntary servitude’ are uniquely human activities,” and, accordingly, that “there is simply no 24 basis to construe the Thirteenth Amendment as applying to non-humans.” Id. 25 The same is true here. Article I, Section 8 of the United States Constitution enumerates 26 the powers afforded to Congress under the Constitution. One of those powers is “[t]o promote the 27 Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the 28 exclusive Right to their respective Writings and Discoveries.” U.S. Const., Art. I, § 8, Clause 8. COOLEY LLP ATTORNEYS AT LAW PALO ALTO 7. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 12 of 16 1 There is no basis to construe “authors” and “inventors” as applying to animals because they are 2 incapable of exercising any rights in their works, they suffer no redressable injury when those 3 works are used by humans, and providing animals exclusive rights they cannot exercise would 4 hinder, rather than “promote[,] the progress of science and [the] useful arts.” Id. Accordingly, 5 the Constitution does not vest Congress with the authority to secure to animals copyright 6 protection and, as discussed below, Congress has not done so. 7 B. 8 The Complaint also fails to plead statutory standing. The Copyright Act of 1976, 17 9 U.S.C. § 101 et seq., confers no rights upon animals like Naruto. Accordingly, dismissal is 10 The Complaint Should Be Dismissed for Lack of Statutory Standing appropriate under Rule 12(b)(6) for failure to state a claim. Cetacean, 386 F.3d at 1179. 11 On December 22, 2014, the Copyright Office issued its current Compendium of the U.S. 12 Copyright Office Practices (the “Compendium”). Section 306, titled “The Human Authorship 13 Requirement,” provides that the Copyright Office “will register an original work of authorship, 14 provided that the work was created by a human being.” Compendium of the U.S. Copyright 15 Office Practices, § 306 (3d ed. Dec. 22, 2014). The rationale is simple: “copyright law only 16 protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’ [] 17 Because copyright law is limited to ‘original intellectual conceptions of the author,’ the Office 18 will refuse to register a claim if it determines that a human being did not create the work.” Id. 19 (citations omitted). Similarly, in a section titled “Works That Lack Human Authorship,” the 20 Compendium states that, “[t]o qualify as a work of ‘authorship’ a work must be created by a 21 human being. Works that do not satisfy this requirement are not copyrightable.” Id. § 313.2. 22 The Compendium then goes on to say explicitly that “the Office will not register works produced 23 by nature, animals, or plants,” and that unprotectable works include, for example, a “photograph 24 taken by a monkey.” Id. (emphasis added). In sum, the U.S. Copyright Office has weighed in 25 on the exact issue before this Court and determined in no uncertain terms that the Monkey Selfies 26 are not subject to protection under the Copyright Act. 27 The Ninth Circuit gives deference to the “expert opinion” of the Copyright Office. See 28 Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir. 2015); see also Inhale, Inc. v. Starbuzz COOLEY LLP ATTORNEYS AT LAW PALO ALTO 8. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 13 of 16 1 Tobacco, Inc., 755 F.3d 1038, 1041-42 (9th Cir. 2014) (finding the Compendium persuasive in 2 determining that the shape of a glass container was not subject to copyright protection). As the 3 Ninth Circuit explained in Garcia, the Copyright Office is “charged with administration and 4 enforcement of the copyright laws and registration,” and its “well-reasoned position reflects a 5 ‘body of experience and informed judgment to which courts and litigants may properly resort for 6 guidance.’” 786 F.3d at 741-42 (citations omitted). Likewise here, there is no reason for the 7 Court to depart from the Copyright Office’s definitive determination that copyright protection 8 does not extend to photographs taken by a monkey. 9 Dismissal of this suit for lack of statutory standing would be appropriate even if the 10 Copyright Office had not weighed in so decisively against the instant claim. As the Ninth Circuit 11 has explained, Congress must “make its intention clear before [courts] will construe a statute to 12 confer standing on a particular plaintiff.” Cetacean, 386 F.3d at 1175. No congressional intent to 13 confer rights on animals is remotely evident in the Copyright Act. To the contrary, the plain 14 language of the Copyright Act demonstrates that Congress intended to extend protection only to 15 human beings. 16 Although the words “author” and “authorship” are not defined in the Copyright Act, the 17 Act includes numerous references that mandate a human-only application. For example, 17 18 U.S.C. section 101 defines an author’s “widow” or “widower” as the “author’s surviving spouse 19 under the law of the author’s domicile at the time of his or her death, whether or not the spouse 20 has later remarried.” Id. Section 203(a)(2)(A) provides that, where an author is deceased, “[t]he 21 widow or widower owns the author’s entire termination interest unless there are any surviving 22 children or grandchildren of the author, in which case the widow or widower owns one-half of the 23 author’s interest.” By defining an author’s rights by reference to “widows” and “grandchildren,” 24 the Copyright Act invokes concepts that are uniquely human in nature and have no conceivable 25 application to animals, which do not marry, much less have rights to pass on property to a 26 surviving spouse or heirs. Indeed, the enumerated rights afforded under 17 U.S.C. section 106— 27 e.g., to reproduce the copyrighted work, to prepare derivative works, to distribute copies—are 28 things only humans can do. Because the Copyright Act contains no evidence of congressional COOLEY LLP ATTORNEYS AT LAW PALO ALTO 9. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 14 of 16 1 intent to vest animals with copyright ownership much less a right to sue for infringement, Naruto 2 lacks statutory standing and this suit should be dismissed. 3 The Ninth Circuit’s decision in Cetacean is controlling and mandates dismissal of this 4 case for lack of statutory standing. There, the “self-appointed attorney for all of the world’s 5 whales, porpoises, and dolphins” filed suit on behalf of these “cetaceans” for violation of, among 6 other statutes, the Endangered Species Act and the Marine Mammal Protection Act. Cetacean, 7 386 F.3d at 1171-72. In reviewing the district court’s order granting dismissal, the Ninth Circuit 8 examined the language of each of these statutes to assess whether they evidenced congressional 9 intent to confer standing on non-humans, and concluded that they did not. 10 summarized: “[i]f Congress . . . intended to take the extraordinary step of authorizing animals as 11 well as people and legal entities to sue, they could, and should, have said so plainly.” Id. at 1179 12 (citation omitted). Accordingly, the Ninth Circuit affirmed dismissal of the suit on the ground 13 that the “Cetaceans do not have statutory standing to sue.” Id. This Court should have no trouble 14 reaching the same conclusion. 15 Finally, although it appears no court has expressly decided whether an animal can own a 16 copyright (presumably because no party has attempted before now to bring such an inherently 17 baseless claim), courts have repeatedly acknowledged that human authorship is a prerequisite to 18 copyright protection. For instance, in Burrow-Giles Lithographic Co. v. Sarony, the Supreme 19 Court described copyright as “the exclusive right of a man to the production of his own genius or 20 intellect.” 111 U.S. 53, 58 (1884) (emphasis added); see also id. at 61 (“photography is to be 21 treated for purposes of the act as an art, and the author is the man who really represents, creates, 22 or gives effect to the idea, fancy, or imagination”). 23 Maaherra, 114 F.3d 955 (9th Cir. 1997), the Ninth Circuit found that a book allegedly inspired by 24 the divine and “embody[ing] the words of celestial beings” (id. at 958), was nevertheless 25 copyrightable “by the first human beings who compiled, selected, coordinated, and arranged the 26 Urantia teachings.” Id. (emphasis added). In light of these authorities, as well as the lack of 27 congressional intent in the Copyright Act to confer standing on animals and the Copyright 28 Office’s definitive pronouncement that works created by animals are not protectable, the Court COOLEY LLP ATTORNEYS AT LAW PALO ALTO As the court 10. Similarly, in Urantia Foundation v. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 15 of 16 1 should find as a matter of law that Naruto lacks statutory standing to sue for copyright 2 infringement, and dismiss this suit with prejudice for failure to state a claim.3 3 C. 4 To state a claim for copyright infringement, a plaintiff must allege that: (1) he owns a 5 valid copyright in the allegedly infringed material; and (2) the alleged infringers have violated at 6 least one exclusive right granted to copyright holders under 17 U.S.C. section 106. Perfect 10, 7 Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007).4 The Complaint fails to plead 8 either element. The Complaint Should Be Dismissed as to Blurb for Failure To State a Claim 9 First, Next Friends cannot establish that Naruto owns the copyright in the Monkey Selfies. 10 Copyright ownership belongs to the “author” of the work. 17 U.S.C. § 201(a). As detailed 11 above, because Naruto is an animal, he cannot be an author for copyright purposes, and thus, 12 cannot establish the necessary copyright ownership to state a claim for infringement. 13 Second, the Complaint also fails to plead infringement by Blurb. To plead a claim for 14 direct copyright infringement, a plaintiff must show “volitional conduct,” that is, that “the 15 defendant directly caused the infringement to take place.” Giganews, 2013 WL 2109963, at *5– 16 7. “[A] third party’s infringing use of a defendant’s automated systems does not render the 17 defendant directly liable.” Rosen v. eBay, Inc., No. CV 13-6801 MWF, 2015 WL 1600081, at *6 18 (C.D. Cal. Jan. 16, 2015) (citing Fox Broad. Co., Inc. v. Dish Network L.L.C., 747 F.3d 1060, 19 1067 (9th Cir. 2014)); see also Giganews, 2013 WL 2109963, at *7 (finding no direct 20 infringement where defendants “simply programmed their servers to automatically copy, 21 distribute, and display content, including infringing content, uploaded by . . . users”). 22 Here, the Complaint merely alleges in conclusory fashion that defendants Slater and Blurb 23 “published and sold for profit” the Wildlife Book (¶ 4), thereby violating Naruto’s exclusive 24 25 26 27 28 3 As Naruto lacks statutory standing, his Next Friends similarly lack standing to sue on his behalf. See, e.g., Tilikum, 842 F. Supp. 2d at 1264–65 (dismissing case brought by PETA and other Next Friends with prejudice because Thirteenth Amendment applies only to humans, not orcas). 4 “These exclusive rights include the right to reproduce, distribute, publicly display, perform, or create derivative works of the copyrighted work.” Perfect 10, Inc. v. Giganews, Inc., No. CV1107098-AHM (SHx), 2013 WL 2109963, at *5 (C.D. Cal. March 8, 2013). COOLEY LLP ATTORNEYS AT LAW PALO ALTO 11. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO) Case 3:15-cv-04324-WHO Document 24 Filed 11/06/15 Page 16 of 16 1 rights to display, advertise, reproduce, distribute, offer for sale, and sell the Monkey Selfies 2 (¶ 43). However, this conclusion is contradicted by judicially noticeable facts about the nature of 3 Blurb’s service. In particular, the Disclaimer on Blurb’s website states in no uncertain terms that 4 Blurb is not the publisher of books created using its software, that those who use its site “publish 5 their own books,” and that Blurb does not even review the user-generated content of is users’ 6 books. (Ex. 2; see also Ex. 3.) Accordingly, there are no well-pleaded factual allegations from 7 which the Court could find that Blurb engaged in any volitional infringing conduct, even if a 8 monkey could hold a copyright (which, of course, it cannot).5 9 V. 10 11 CONCLUSION For the foregoing reasons, Blurb respectfully requests that the Court grant its Motion to Dismiss the Complaint in its entirety, with prejudice. 12 13 Dated: November 6, 2015 COOLEY LLP 14 By: 15 /s/ Angela L. Dunning Angela L. Dunning 16 Attorneys for Defendant BLURB, Inc. 17 18 122942993 19 20 21 22 23 24 25 26 27 28 5 The Complaint alleges only direct infringement as to Blurb; not contributory infringement or vicarious liability for alleged infringement by Mr. Slater. (¶¶ 43–46.) To the extent Naruto’s Next Friends seek to hold Blurb liable for Mr. Slater’s alleged infringement, Blurb reserves all available defenses and arguments with respect to such claims. COOLEY LLP ATTORNEYS AT LAW PALO ALTO 12. BLURB INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 15-CV-04324 (WHO)