The Monkey Selfie Lawsuit Will Never, Ever Die: Appeals Court Judge Wants A Do Over

from the fucking-9th-circuit dept

Last fall, I joked (no, really, it was a fucking joke!) that the monkey selfie saga “will never, ever be over.” I stand by that prediction, even if Cathy Gellis wrote here last month with what she falsely believed was “the last update from the monkey selfie case”. She wrote that because the 9th Circuit — after rejecting a problematic settlement between PETA and photographer David Slater because Naruto, the apparent monkey in the middle had clearly not approved of any settlement — had clearly and decisively rejected PETA’s ridiculous argument. The court found no reason to believe that PETA (being a “next friend” of the monkey) should get the monkey’s copyright for taking the selfie. The court said — as we’ve said from the very beginning — that monkeys don’t get copyright.

Several provisions of the Copyright Act also persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act. See Davis v. Mich. Dep?t of Treasury, 489 U.S. 803, 809 (1989) (?It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.?). For example, the ?children? of an ?author,? ?whether legitimate or not,? can inherit certain rights under the Copyright Act. See 17 U.S.C. §§ 101, 201, 203, 304. Also, an author?s ?widow or widower owns the author?s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author?s interest.? Id. § 203(a)(2)(A). The terms ?children,? ?grandchildren,? ?legitimate,? ?widow,? and ?widower? all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law. Based on this court?s decision in Cetacean and the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto?and, more broadly, animals other than humans?lack statutory standing to sue under the Copyright Act.

And thus, the case was over. Done. Over. Complete. Closed. But, no. This is the monkey selfie case and it will never, ever end.

On Friday, the case came back to life. The court declared that another judge in the 9th Circuit is requesting that the court rehear the case en banc. This means that rather than just a typical 3 judge panel, an 11 judge panel would rehear the case (in other circuits, en banc often means all the judges, but the 9th is so big, they just go with 11). Often one of the parties in a case will ask for a case to be reheard en banc. In this case, it was a judge. This happens, though rarely. This doesn’t mean the case will get heard again. There needs to be a vote. But, in the meantime, the court is asking the various parties to file briefs on whether or not the case should be reheard.

We’re unlikely to find out who made this request, but it’s worrisome that there’s a judge who thinks the case should be reheard. It certainly suggests there’s a judge who believes animals can get copyright. Indeed, it suggests that there may be a judge in the 9th Circuit who believes the important Cetacean case — which was crucial to this ruling in that it says that without it being expressly noted by Congress, animals do not get the right to sue in court — may not be good law.

And while that may not seem like a big deal it could be a very big deal — and not just for the likes of PETA deciding to go around suing everyone on behalf of animals, but because a change in such a case might impact a totally different, but increasingly important area of law: whether works created by artificial intelligence will get covered by copyright law.

Hopefully, the 9th circuit is not taken in by this one judge and decides not to rehear the case en banc — or if, monkeys forbid, that it does decide to continue this monkey business, it upholds the original ruling by the appeals court. Either way, it feels like this case is cursed. The curse of the monkey selfie.

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Comments on “The Monkey Selfie Lawsuit Will Never, Ever Die: Appeals Court Judge Wants A Do Over”

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36 Comments
Anonymous Coward says:

"selfie" or "bullshit"?

I’m waiting for the photographer to confess that the monkey had nothing to do with it. Of course the guy took all the pictures himself in a carefully laid out plan. But he knew he could generate far more publicity if he were to make up a tall tale that this monkey suddenly appeared, picked up the camera and took all the photographs itself, in an amazing display of human-like intelligence that the photographer never anticipated.

That One Guy (profile) says:

Re: "I'm a liar, you can trust me."

At this point I don’t imagine it would do him any good. Not only would it be really hard to believe him after this whole debacle, at best all it would snag him would be a copyright that no-one’s going to license anyway, in exchange for a flat out admission that he lied the first time because he thought it would help him.

He had his chance in the beginning of this whole thing to use the photo to gain some attention and possibly score a job, but his own greed got the better of him and now all he’ll be remembered for is being involved of a train-wreck of a lawsuit and legal threats over a single photo of a monkey.

K`Tetch (profile) says:

Re: Re: "I'm a liar, you can trust me."

The most interesting thing, is that now he claims the photos were taken in 2011.
He had those photos up on his site as far back as 2008.
https://web.archive.org/web/20080425185423/http://www.djsphotography.co.uk:80/Tropical%20Forests/Sulawesi%20Macaques.htm

So yeah, it’d be fun to see him admit it’s all a scam he hatched to make money from his photos.

The Wanderer (profile) says:

Re: Re:

I believe that in that case, the human set up the camera, arranged the shot (e.g. the intended framing and backdrop), and defined the conditions under which the taking of the picture would actually be triggered, so the human would hold the copyright.

By contrast, in the monkey-selfie case, neither the position of the camera nor the trigger condition for the shot – nor, indeed, apparently anything else about the photograph, except perhaps for things like focus, shutter speed, and aperture – was controlled by the human; all of those things were controlled by the monkey, so the human’s input was not sufficient (nor sufficiently creative) to qualify for a copyright.

Anonmylous says:

Re: Re: Re:

See that’s where I think this request for a re-hearing is coming from. Its not that the judge thinks an animal should hold the copyright, its gotta be that he thinks the human should have it because someone MUST have it.

I mean, no judge, no actual elected or appointed official in charge of adjudicating the law, could possibly be that stupid.

Right?

David says:

You know what?

I have less of a problem with monkeys having copyright than corporations having it. The latter cause much more damage. Just imagine copyright not being transferable except once to a single non-human animal that corporations may take responsibility for in return for the earnings as long as that animal lives in its natural habitat.

That would probably be the single most effective way to preserve a whole range of long-lived animals from extinction: just guess what copyright corporations would be willing to do for ravens, giant sea turtles, elephants and what not.

Anonymous Coward says:

“We’re unlikely to find out, but it’s worrisome that there’s a judge who thinks the case should be reheard, as it certainly suggests a judge who believes animals can get copyright. Indeed, it suggests that there may be a judge in the 9th Circuit who believes the important Cetacean case, which was crucial to this ruling, and which says that without it being expressly noted by Congress, animals do not get the right to sue in court.”

…uh…did something go missing in here? I can’t tell what’s supposed to be being said.

Bergman (profile) says:

Re: Not necessarily bad

Another thing to consider, is how PETA has standing to bring this lawsuit at all. They seem to be claiming that despite their ‘client’ not knowing of the lawsuit, not knowing he even has a lawyer or receiving any actual benefit from winning ‘his’ case (since, you know, he’s a monkey owned by a foreign government and all)…

What does this do to the concept of standing? Because from what it looks like, it seems that by even hearing the case, the 9th Circuit has decided that a total lack of standing to sue is utterly irrelevant.

Mason Wheeler (profile) says:

Indeed, it suggests that there may be a judge in the 9th Circuit who believes the important Cetacean case, which was crucial to this ruling, and which says that without it being expressly noted by Congress, animals do not get the right to sue in court.

You seem to be missing the end of this sentence.

It suggests that there may be a judge in the 9th circuit who believes what about the Cetacean case? That it’s wrong? That it’s been applied improperly in this instance?

JuddSandage (profile) says:

Oh Bananas

Someone should tell these Lawyers (or Judge) to quit Monkeying around, this isn’t some Circus, its a court of Law, now at times it may feel like there are an infinite number of Lawyers locked up in a room somewhere banging out the combined works of Shakespeare, but this isn’t Monkey business…. hell before you know it someone might go Apeshit and sue everyone.

That Anonymous Coward (profile) says:

*deep breath*
AHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH
*deep breath*
HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!

Now, everyone join me in singing the theme song for this case…

This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…This is the case that never ends, yes it goes on and on my friend. Some people filed it, not knowing what it was, and they’ll continue litigating it forever just because…

(I’m sorry for tripping the spam detector)

Crazy Canuck says:

If I use my camera and take a photo, it’s my copyright.

If I put my camera on a tripod, setup a time delay, and run into the photo. It’s my copyright.

If I put my camera on a drone, fly it around and take photos. It’s my copyright.

If I set my camera to take photos at certain elevations and put it on a weather balloon. It’s my copyright.

I strap my camera onto the back of a horse and set the camera to take a photo every 30 seconds. They are my copyrights.

I put my camera on the ground in front of a monkey and it takes a photo, why don’t I get the copyright?

How is the monkey taking the photo different than the software taking a photo after a time delay or other conditional programming? I put the camera in the situation where it would capture a photo. Who care what mechanism I used to cause the shutter to activate. Be it a mechanical timer, software programming, an elaborate Rube Goldberg machine or a live animal?

The Wanderer (profile) says:

Re: Re:

As I understand things, it’s a question of creative input.

In all of the first set of scenarios, you determine when the photograph gets taken, and you define the circumstances which determine what the contents of the photograph will be.

In the first four scenarios, you are defining the framing (and probably the exact contents) of the photograph.

In the first and third (and possibly second) scenarios, you are explicitly triggering the photograph itself to be taken.

In the fourth and fifth (and possibly second) scenarios, you are configuring the camera to take photographs automatically, thereby determining the timing (et cetera) of the photographs.

(As I understand things, the element of creative decision is what differentiates a "photo every X seconds" setup like the one in your "back of a horse" scenario from e.g. a security video camera, which – after all – simply takes a photograph every tiny fraction of a second.

It’s my understanding that not all such security-camera recordings qualify for copyright (if indeed any do), and that the fact that the aspects which might ordinarily require creative input – the positioning of the camera, the framing of the image, the timing of the photograph, et cetera – are instead all defined by the business requirements which necessitate the placing of a security camera in the first place is the reason why they do not.

Deciding to take pictures automatically from the back of a horse may be creative. Deciding to take pictures automatically from a fixed location in order to catch people if they do something wrong is not – or at best, it’s the kind of creative which can result in a patent, which would be long since expired.)

If you set up the camera to take a photo every so-many seconds, and then set it down on the ground in front of a monkey with the intention of capturing any photographs that might result from the monkey’s playing around with the camera, that might be enough creative input to qualify you for a copyright on the result. (Although you’d also run the risk that the monkey would ignore the camera, or break it, or that the playing-around would result only in uninteresting photographs.)

But if you didn’t set up the camera to take photographs automatically – if your only input to the situation was providing the camera into a context where there was also a monkey – where was your creative input, and what did you do that was creative enough to deserve the monopoly known as copyright?

In the actual situation which occurred, it appears that the human who owned the camera not only didn’t configure it to take photographs automatically, he didn’t have any idea that setting the camera down there might result in the monkey taking photographs. None of the creativity which went into the resulting photographs was his; as such, his input into the result was not sufficient for him to be granted a copyright on that result.

(I suspect that that "completely of the monkey’s volition" element of the situation is part of what makes the photographs in question so interesting to the public, as well; ones resulting from an automatic-photo-taking scenario might not have become nearly so famous.)

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