Page:Thaler v. Perlmutter, Reply in Support of Cross-Motion for Summary Judgment.pdf/9

This page has been proofread, but needs to be validated.

Case 1:22-cv-01564-BAH Document 21 Filed 04/05/23 Page 9 of 15

photographs taken by a monkey), and Urantia Foundation v. Kristen Maaherra, 114 F.3d 955 (9th Cir. 1997) (involving a book “authored by celestial beings”)). These decisions employ reasoning that applies squarely to this case and have uniformly rejected non-human authorship of copyrighted works. See id.

Efforts by Plaintiff to avoid the holdings in those cases are superficial at best. Plaintiff urges this Court to ignore any case-law that addressed multiple copyright issues—as if reaching more than one question could somehow dilute or nullify a court’s opinion as to authorship. See Dkt. 18 at 5–6. For example, Plaintiff’s main quarrel with Kelley – the case involving a living garden – is that the Seventh Circuit’s holding involved both authorship and fixation issues.^[1] Id. at 6. Regardless of the other issues at stake, Kelley unambiguously addressed the type of human involvement required for copyright protection. See Kelley, 635 F.3d at 303 (“[A] living garden lacks the kind of authorship and stable fixation normally required to support copyright” and “authorship and fixation are explicit constitutional requirements”). Even Plaintiff concedes that “the Kelley court stated that authors are human.” Dkt. 18 at 6.

Similarly, in trying to discount Naruto – the case regarding photographs taken by a monkey – Plaintiff notes that the case was decided on standing grounds.^[2] See Dkt. 18 at 6. Plaintiff fails to explain why this observation makes the case any less relevant. In Naruto, the

↑ Plaintiff also attempts to distinguish Kelly because the case involved a portion of the Act amended by the Visual Artists Rights Act of 1990 (VARA). See Dkt. 18 at 6. This fact, however, is irrelevant because VARA did not remove the authorship requirement or other basic copyrightability standards. Kelley, 635 F.3d 299 (VARA “supplements general copyright protection; to qualify for moral rights under VARA, a work must first satisfy basic copyright standards”).
↑ To the extent Plaintiff suggests that Defendants’ citation to this case was misleading, Defendants’ Cross-Motion informed the Court in several places that the Ninth Circuit decided the case based on a lack of standing. See Dkt. 17 at 16, 17.

5

[1] Plaintiff also attempts to distinguish Kelly because the case involved a portion of the Act amended by the Visual Artists Rights Act of 1990 (VARA). See Dkt. 18 at 6. This fact, however, is irrelevant because VARA did not remove the authorship requirement or other basic copyrightability standards. Kelley, 635 F.3d 299 (VARA “supplements general copyright protection; to qualify for moral rights under VARA, a work must first satisfy basic copyright standards”).

[2] To the extent Plaintiff suggests that Defendants’ citation to this case was misleading, Defendants’ Cross-Motion informed the Court in several places that the Ninth Circuit decided the case based on a lack of standing. See Dkt. 17 at 16, 17.

[1]

[2]