by Richard W. Millar, Jr.

Pierre Boulle, a French novelist, wrote two wonderful but very different books, both of which I read a long time ago. The first was The Bridge over the River Kwai, which became a terrific movie that won seven Oscars. The second was Planet of the Apes, which, at last count, spawned eight movies, counting sequels and prequels or whatever else Hollywood calls knock-offs. (It is harder to make a sequel to a movie about a bridge that ends with the bridge being blown up, but I digress.)

My point, which I am sure you were wondering if I would get to, is that all I know about monkeys, whether men dressed up as monkeys, real monkeys, or computer generated monkeys, comes from the various iterations of Planet of the Apes.

I know even less about copyrights. If there was ever a movie about copyrights, I missed it. Deliberately.

Also, like many my age, I don’t indulge in “selfies.” As far as I am concerned a mirror is bad enough.

And then there is PETA. I love animals as much as the next guy, but these people live in their own zip code.

So you can imagine that when I learned of a lawsuit brought by a monkey, through his “next” (not “best”) friend PETA for copyright infringement for unauthorized use of his “monkey selfies,” it pretty much stopped me in my tracks.

The monkey in question, who (or is it which–I am never sure with monkeys) is the “real monkey in interest,” is named Naruto. (I don’t know who named him Naruto or even if he knows his name is Naruto, but I will take it at face value since I certainly can’t ask him.) Naruto, according to his complaint, is a member of the Macaca nigra species, also known as a crested macaque, and he lives in the Tangkoko Reserve on the island of Sulawesi in Indonesia. Since his action was filed in federal district court, my guess is that counts for diversity jurisdiction. (Federal court is also convenient since it does away with any requirement that the complaint be verified, which could be awkward because, even though Naruto is quite the photographer, his penmanship skills are lacking.)

Furthermore, PETA is prosecuting the action because, in bemused understatement, “Naruto cannot independently bring this action due to inaccessibility and incapacity.” I have run into claims that buildings, including courthouses, may be inaccessible, but I have never seen a plaintiff so described, nor do I understand how Naruto’s “inaccessibility” gives standing to PETA, or even the monkey, for that matter.

The defendants are one David Slater whose supposedly unattended camera was allegedly used by Naruto to take his “monkey selfies,” and who, with defendant Wildlife Personalities Ltd., are “identified” as the copyright owners of the selfies, and the remaining defendant is the publisher of a book containing copies of the selfies. The essential claim is that Naruto has the right to own the copyright as the “author” of the photographs even though the “claim of authorship by species other than Homo sapiens may be novel.” You think? Perhaps “novel” in the sense Mr. Boulle wrote. I can see the next movie: Planet of the Apes Attack the Copyright Office.

Even if you assume, as I am a tad reluctant to do, that monkeys can sue and own copyrights, there are some proof problems on the monkey horizon. First of all, how do we know the pictures are really of Naruto? I mean, he is a fairly good looking monkey, as monkeys go, but I am not sure I could pick him out of the crowd of 6,000 he supposedly lives with. Secondly, how do we know he took the pictures himself? Is he going to testify?

Come to think of it, I am worrying unnecessarily. Naruto has demanded a jury.

Of his peers.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.

Richard W. Millar, Jr. will receive OCBA’s highest honor, the Franklin G. West Award, at the Annual Judges’ Night event on Thursday, Jan. 21, 2016. Download the flyer for more information or register online.