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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  • icon
    Stephen T. Stone (profile), 29 May 2018 @ 3:18am

    I have to wonder if the lawyers on both sides had a WTF reaction when they got word of this news.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 May 2018 @ 4:13am

    Copyright will never, ever die. It lasts 70 years longer than the fucker who causes an instance of it to exist and the MPAA keeps paying the government to extend that lifespan...

    reply to this | link to this | view in chronology ]

  • icon
    discordian_eris (profile), 29 May 2018 @ 4:19am

    Hopefully this judges request for an en banc rehearing came about as the result of PETAs use of a monkeys paw.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 May 2018 @ 4:36am

    "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.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 29 May 2018 @ 12:29pm

      "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.

      reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 29 May 2018 @ 4:46am

    A display of human like intelligence

    That doesn't say much about the monkey. I thought it would have been smarter than that.

    reply to this | link to this | view in chronology ]

  • identicon
    Capt ICE Enforcer, 29 May 2018 @ 5:39am

    Laws suck

    And this my friends is why the government can change meanings of words in order to have a rather short paragraph mean something altogether different. Laws suck when it doesn't hold the power of it's intent.

    reply to this | link to this | view in chronology ]

  • icon
    jimbobalu (profile), 29 May 2018 @ 6:20am

    Who has the copyright to a picture taken with a camera trap? I know a human has set it up but the animal is the one who actually triggers the picture to be taken.

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 29 May 2018 @ 6:29am

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 May 2018 @ 7:02am

        Re: Re:

        But the human was the content distributor......

        reply to this | link to this | view in chronology ]

      • identicon
        Anonmylous, 29 May 2018 @ 11:12am

        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?

        reply to this | link to this | view in chronology ]

      • icon
        K`Tetch (profile), 31 May 2018 @ 4:06pm

        Re: Re:

        according to the photographer in his initial publicity statements (well, initial when he hired the agent), the monkey controlled the focus too, saying he took hundreds, and most were out of focus.

        reply to this | link to this | view in chronology ]

  • identicon
    David, 29 May 2018 @ 7:01am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 May 2018 @ 7:05am

    "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.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 29 May 2018 @ 7:22am

    I think we've discovered a judge that needs to get a job.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 29 May 2018 @ 7:35am

    OMFG OMFG OMFG

    My fantasy is that this is the absurdist straw that finally breaks the copyright establishment and forces reform or dissolution.

    Unlikely, but it would make my year.

    reply to this | link to this | view in chronology ]

  • icon
    Dan (profile), 29 May 2018 @ 7:53am

    Not necessarily bad

    This isn't necessarily a bad thing. A much better ground to have decided this case would have been that the court's earlier decision in Cetacean was idiotic, and that animals simply aren't proper parties. Period. It would have reached the same result here, but the rationale would be better.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 May 2018 @ 8:19am

      Re: Not necessarily bad

      Maybe we should finally tell them the big secret—that all the chimps we sent into space came back super-intelligent.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 29 May 2018 @ 8:10pm

      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.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 29 May 2018 @ 8:58am

    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?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 May 2018 @ 9:47am

    WELL, you could stop writing it up! It'd die without Techdirt!

    And you SHOULD, because apparently you and ME agree!

    reply to this | link to this | view in chronology ]

  • icon
    NeghVar (profile), 29 May 2018 @ 1:20pm

    Up next...

    Tree huggers claim ferns should be granted the copyright of their fractal pattern.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 29 May 2018 @ 8:11pm

      Re: Up next...

      By that standard, it would be copyright infringement for police to fingerprint someone without first winning a lawsuit granting them that right.

      reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 29 May 2018 @ 1:57pm

    Is it an en banc review of the case itself, or the proposed settlement between PETA and the photographer? PETA claimed to represent the animal as a 'next friend', yet provided no benefit to the animal in the proposed settlement.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 May 2018 @ 3:13pm

    Sick of all the monkeys in the news lately

    Now Roseanne Barr has been fired for comparing an Obama appointee to actress Kim Hunter's appearance in a racist 1968 film. And now that she's free, just watch her join the Trump administration, where she'd be a perfect fit!

    reply to this | link to this | view in chronology ]

  • identicon
    JuddSandage, 29 May 2018 @ 5:15pm

    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.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 29 May 2018 @ 7:02pm

    *deep breath*
    AHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH
    *deep breath*
    HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!

    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)

    reply to this | link to this | view in chronology ]

  • identicon
    Crazy Canuck, 30 May 2018 @ 1:28pm

    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?

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 31 May 2018 @ 4:19am

      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.)

      reply to this | link to this | view in chronology ]


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