Monkey Selfie Case Reaches Settlement -- But The Parties Want To Delete Ruling Saying Monkeys Can't Hold Copyright
from the this-is-bad dept
For many years now, we've been covering the sometimes odd/sometimes dopey case of the monkey selfie and the various disputes over who holds the copyright (the pretty clear answer: no one owns the copyright, because the law only applies to humans). David Slater, the photographer whose camera the monkey used, has always claimed that he holds the copyright (and has, in the past, tried to blame us at Techdirt for pointing out that the law disagrees). A few years back, PETA, the publicity-hungry animal rights group, hired big time lawyers at Irell & Manella to argue (1) the monkey holds the copyright, not Slater, (2) PETA somehow magically can stand in for the monkey in court -- and sued Slater over it. Slater and I disagree over whether he holds the copyright, but on this we actually do agree: the monkey most certainly does not hold the copyright.
The district court ruled correctly that works created by monkeys are in the public domain and that PETA had no case. PETA appealed. Last month, we wrote that the case was likely to settle, because both sides were highly motivated to get it out of court. On Slater's side, he had told some reporters that the legal fight has left him broke (which bizarrely lead to a bunch of people blaming me, which still makes no sense), while PETA desperately wanted to settle because the hearing in the case made it abundantly clear that the appeals court was not buying its argument. Indeed, it appears that the judges hearing the case could barely contain laughter at the bananas argument made by PETA's lawyers.
So it comes as little surprise that the parties have released a joint statement saying they've settled the case and asking the court to dismiss the appeal. Part of the agreement is that Slater says he'll donate 25% of any future proceeds from the monkey selfie pictures to organizations that protect the habitat of macaque monkeys in Indonesia, which seems like a good cause.
But... there is a pretty clear problem with the proposed settlement. Not only are they asking the court to dismiss the case due to the settlement, the parties have also agreed to ask the court to vacate the district court's ruling saying that animals cannot copyright works they create. Basically, PETA and its high-priced lawyers lost really badly on a fundamental issue of copyright... and now they want to erase that precedent so they or others can try again. PETA is arguing, incredibly, that if the original ruling stands, it will unfairly bind the monkey Naruto:
Here, the settlement is between PETA and Defendants. Accordingly, under Bonner Mall, PETA maintains that Naruto should not be “forced to acquiesce” to the district court’s judgment that he lacks standing under the Copyright Act where the appeal will be mooted by an agreement by PETA and PETA’s Next Friend status is contested and undecided. Rather, PETA maintains that it would be just and proper to vacate the judgment of the district court.
Wait. So PETA doesn't want Naruto -- the monkey that it claims to represent on no real basis, and who has absolutely no clue any of this is actually happening -- to be "forced to acquiesce" to the ruling? That's utter bullshit.
Of course, it's almost certainly not the real motivation here. The more likely reason is simply that PETA doesn't want that precedent on the books and there will likely be other cases in the very near future on other non-human created works. PETA's lawyers, Irell & Manella, may very well be trying to position themselves as the go-to lawyers on issues like who holds the copyright on AI-created works (answer again: no one), and having this ruling on the books, even at the district court level, would be inconvenient.
Hopefully the court will see through this and leave the ruling as is. Otherwise it seems likely that we'll be seeing a lot more of these kinds of cases. In the meantime, PETA also put a silly statement on its blog calling the case "groundbreaking." It was not groundbreaking. It was a stupid, nonsensical argument that was clearly not correct, and was basically laughed out of court. PETA says that this "sparked a massive international discussion about the need to extend fundamental rights to animals...." Except it did nothing of the sort.
Most of the press coverage you'll see about the case are just sort of laughing it off -- saying "oh that silly monkey selfie case has settled." But very few of them are reporting the request to vacate the lower court ruling. It's a bad idea and hopefully the court does not allow it to happen.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, david slater, monkey selfie, precedent, public domain, settlement
Companies: irell & manella, peta
Reader Comments
Subscribe: RSS
View by: Time | Thread
"the need to extend fundamental rights to animals..."
• Copyright law does not apply to non-human animals.
• Non-human animals produce far less art, per capita, than humans do
• Animals are almost exclusively driven by financial concerns.
Since all of those statements are obviously true, I'm going to have to side with PETA on this one.
[ link to this | view in chronology ]
Meanwhile...
[ link to this | view in chronology ]
Re: Meanwhile...
[ link to this | view in chronology ]
Re: Re: Meanwhile...
[ link to this | view in chronology ]
Re: Re: Re: Meanwhile...
[ link to this | view in chronology ]
I'd love to share them with you all, the Techdirt community, but honestly I have no idea who owns the copyright on them. Do I since I took the pictures? The Ueno Zoo? PETA? Does each monkey own a partial copyright depending on what pictures they're in? Perhaps the company who made my cell phone and their camera supplier wants in on the claim?
Oh well, in the end I guess I can't share any of my pictures with you out of fear I'll get sued. Darn copyright maximists. This is why we can't have nice things in America.
[ link to this | view in chronology ]
Re:
Oh, and the architect of the monkey enclosure. And the lighting director. And the animal trainer. Monkey choreography is not the same without one.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Think about it, once you argue that we remove that human creativity part then who gets copyright? Should Adobe get rights to things created with photoshop? Maybe Kodak should get the rights to photos taken on their film? How about Canon and their cameras? After all, these companies put in a lot more work than David Slater did. So shouldn't they get the copyright over works made with their products?
[ link to this | view in chronology ]
Re:
Honestly, I can't quite wrap my head around how this all works, even now. It isn't hard to come up with edge cases, like say I give a bunch of cameras to a group of babies; do they each own the copyright to their photos, even though they can't be said to have a creative role in any traditional sense? Or do I for setting it up?
Or what if I set up an installation where people play with an object that they don't realize is a camera, but that takes pictures based on some action they take? They'd be the most-adjacent human to the actual act of creation, but it doesn't seem like they're doing the creative work.
[ link to this | view in chronology ]
I believe animals do have the right...
[ link to this | view in chronology ]
I believe animals do have the right...
[ link to this | view in chronology ]
Massive International Discussion
Sure it did!
After all, Techdirt is published internationally.
[ link to this | view in chronology ]
confused
[ link to this | view in chronology ]
Re: confused
Because they want to support the person selling it, or because they want a better quality print than they can produce themselves.
[ link to this | view in chronology ]
Re: Re: confused
Are you sure that your activity with google search is actually legal? Licenses for the photos available in the google search are nowhere to be found and I'm 100% sure that you didn't have any email-discussion with the authors of the photos to obtain those licenses. You definitely didn't create the photos yourself, so that avenue is blocked too. So your only option is some fuzzy implicit license, which is most of the cases completely bullshit.
[ link to this | view in chronology ]
Re: confused
I don't know how many times I've looked at a painting and thought: man if only the frame maker had also put their signature on the back then I could sell this paining for even more.
[ link to this | view in chronology ]
Re: confused
[ link to this | view in chronology ]
Re: Re: confused
Most animals obviously can't make use of copyright (most animals can't even create art) so who will?
PETA?
The WWF?
The Zoo (captive animals)?
The reservation administration (wild animals)?
The government of the animal's country of origin?
In the last case is the animal considered a state worker? In some countries that would put the work right back in the public domain.
[ link to this | view in chronology ]
Bravo.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
I WANT THE TRUTH!
[ link to this | view in chronology ]
With (next) friends like these, who needs enemies?
"[I]n certain limited circumstances, a nonparty may be bound by a judgment because she was adequately represented by someone with the same interests who was a party to the suit." Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (citation, internal edits, and quotation marks omitted).
In addition, "a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in litigation later brings suit as the designated representative or agent of a person who was a party to the prior adjudication." Id.
You don't get to sue as "next friend" and then say "oops, never mind, not really a friend" when you lose badly.
[ link to this | view in chronology ]
PETA logo
[ link to this | view in chronology ]
Re: PETA logo
[ link to this | view in chronology ]
Hmm...
And this is one of those creepy thin-end-of-the-wedge ideas, I know, but while the monkey did action the shutter on the camera, a lot of post-shot work goes into making a photo publication-ready. Adjusting levels, enhancing saturation or hue, focal tweeking, reframing, etc... half the work is in the field the other half is in the darkroom (or on the computer now).
So, i don't know if there isn't an actual copyright claim that hasn't been made, if it would be considered transformative enough to stand in its own right or not. But was it even argued?
[ link to this | view in chronology ]
Re: Hmm...
[ link to this | view in chronology ]
You're going to have to explain this one to me, because AI would be created by someone or group, and hosted inside something owned by someone or group. Why would AI-created works not be owned by the AI's owner, much like how employees creations on company time are owned by the company?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
It should depend on AI's well, intellegence.
Some time ago some people were also 'a tool used to create a work' and nothing more. This was changed.
Naruto is NOT sapient being by any definition. AI will become fully sapient at some point of time.
[ link to this | view in chronology ]
Having their banana and eating it too
Here, the settlement is between PETA and Defendants. Accordingly, under Bonner Mall, PETA maintains that Naruto should not be “forced to acquiesce” to the district court’s judgment that he lacks standing under the Copyright Act where the appeal will be mooted by an agreement by PETA and PETA’s Next Friend status is contested and undecided. Rather, PETA maintains that it would be just and proper to vacate the judgment of the district court.
The monkey isn't being 'forced' to do squat. The monkey isn't involved in the slightest, has no knowledge of the proceedings, and will not be impacted at all by any ruling, no matter what the terms are, barring some insanity(which I would not put past PETA to be honest) of someone flying back to find the primate in question and present the settlement papers to them.
As for the court deciding that the monkey had no copyright over which PETA could go ape over they were merely pointing out that the law and copyright office clearly do not cover non-humans under the law, explicitly in the case of the Copyright Office.
Similarly, in a section titled “Works That Lack Human Authorship,” the Compendium states that, “[t]o qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.”... Specifically, the Copyright Office will not register works produced by “nature, animals, or plants” including, by specific example, a “photograph taken by a monkey.”
'Monkey-selfies' weren't covered under the law before the ruling, and they still aren't covered. The judge pointing this out to the attention seekers at PETA and the (now) joke lawyers they hired didn't change this in the slightest.
Hopefully the judge involved slaps this blatant attempt to brush aside a precedent the parties don't like down hard. You don't get to avoid a precedent you don't want by settling, and wipe away another one at the same time by doing so.
[ link to this | view in chronology ]
In Human Society ...
If non-human animals are given rights, do they also have to accept responsibilities as well?
Within human society, there are only two categories of individuals I am aware of that are given rights while having to accept only diminished responsibility for their actions: children, and the intellectually disabled.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Vacating
[ link to this | view in chronology ]
But animals!
[ link to this | view in chronology ]
100% of nothing
PETA is essentially a fund raising machine. They need to raise funds to continue. 25% of potential income (for one of their causes) is way better than 100% of nothing.
The back peddling is stupendous, if they hadn't forced all the Circuses to close they might have an act for the center ring.
[ link to this | view in chronology ]
Re: 100% of nothing
[ link to this | view in chronology ]
Re: 100% of nothing
The image was always in the public domain, PETA cut and ran because they didn't want another ruling to explicitly point this out, and it was apparently quite clear that the judges weren't buying any of their arguments such that any official ruling was not going to go their way.
[ link to this | view in chronology ]
STUPID IS AS STUPID DOES......
I can only wonder why Slater would agree to an obligation to report all income from the image. Net result: PETA - who had no real standing has now obtained a contractual right to a perpetual royalty stream. I can only imagine the "demands" Slater will be receiving in the future to have his finances audited for compliance.
[ link to this | view in chronology ]
Re: STUPID IS AS STUPID DOES......
[ link to this | view in chronology ]