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Monkey Selfie Case Reaches Settlement -- But The Parties Want To Delete Ruling Saying Monkeys Can't Hold Copyright

from the this-is-bad dept

Tue, Sep 12th 2017 10:37am — Mike Masnick

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.

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Filed Under: copyright, david slater, monkey selfie, precedent, public domain, settlement
Companies: irell & manella, peta

44 Comments

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dropcap (profile), 12 Sep 2017 @ 10:01am

"the need to extend fundamental rights to animals..."
• Copyright law provides an economic incentive to create art.
• 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.
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Ninja (profile), 12 Sep 2017 @ 10:22am

Meanwhile...
Somewhere in the wild Naruto scratched his butt to quell that ominous feeling something went awry...
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Anonymous Coward, 12 Sep 2017 @ 10:48am

I was just thinking about this story recently on my trip to Japan. I went to the Ueno Zoo and they had an exhibit of macaque monkeys. I took so many pictures of the cute little critters climbing all over their rock mountain and playing with each other.

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.
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Larry Zerner (profile), 12 Sep 2017 @ 10:52am

I would agree to vacating the district court decision if the Court then appoint's me as Naruto's "Next" Next Friend so I can sue PETA and Irell & Manella for malpractice and filing bullshit legal claims on a monkey's behalf.
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Machin Shin, 12 Sep 2017 @ 10:57am

These people are going to find that they are opening a nasty can of worms trying to argue that copyright is not tied to the human doing the creativity.

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?
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dropcap (profile), 12 Sep 2017 @ 11:13am

Re:
I think the argument would be something like the most-adjacent human? The monkey took the photo, but with my camera in the place where I left it, so I came closest to having some creative input in the process. Because we just can't abide by works without owners.

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.
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Roger Strong (profile), 12 Sep 2017 @ 11:24am

Re: Meanwhile...
That wasn't the court decision. But at least Naruto just got a year of free credit monitoring.
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TheResidentSkeptic (profile), 12 Sep 2017 @ 11:40am

I believe animals do have the right...
... to be delicious in a light cream gravy...
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TheResidentSkeptic (profile), 12 Sep 2017 @ 11:40am

I believe animals do have the right...
... to be delicious in a light cream gravy...
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David, 12 Sep 2017 @ 11:44am

Re:
No no no, you own the copyright on the pictures, but you cannot publish because of the monkeys' personality rights before speaking with their publicity agent.

Oh, and the architect of the monkey enclosure. And the lighting director. And the animal trainer. Monkey choreography is not the same without one.
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Michael Chermside (profile), 12 Sep 2017 @ 11:54am

Massive International Discussion
> 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.

Sure it did!

After all, Techdirt is published internationally.
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Jordan Chandler, 12 Sep 2017 @ 12:04pm

confused
I'm confused why their case has any impact what-so-ever in other cases. Monkeys still aren't people and can't hold copyrights. His photo is still in the public domain. Why would anyone pay for that photo that I can legally grab via a google search?
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bob, 12 Sep 2017 @ 12:04pm

So the monkey selfie turned into a monkey paw trap for PETA.

Bravo.
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John Roddy (profile), 12 Sep 2017 @ 12:07pm

Re: Re: Meanwhile...
Wait, hold on… The court ordered the monkey to scratch his butt? I admit that I haven't read every single document related to this case, but I would think something like that would find its way to the top of the pile pretty fast. O.o
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Anonymous Coward, 12 Sep 2017 @ 12:42pm

Re: confused
>Why would anyone pay for that photo that I can legally grab via a google search?

Because they want to support the person selling it, or because they want a better quality print than they can produce themselves.
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Anonymous Coward, 12 Sep 2017 @ 12:51pm

anyone know what the monkey is going to spend all his settlement monies on? maybe a nice vacation to somewhere that no one can take any pics of him, perhaps? Mars sound appealing?
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Ninja (profile), 12 Sep 2017 @ 1:06pm

Re: Re: Re: Meanwhile...
No, they ordered the lawyers to scratch their butts. Metaphorically speaking of course.
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orbitalinsertion (profile), 12 Sep 2017 @ 1:26pm

Re:
Not if they have any idea about the fates of other non-human primates launched into space. "Naruto" is somewhere that is actually very remote right now. Maybe he'd like a border wall, though.
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Oblate (profile), 12 Sep 2017 @ 1:27pm

Does this mean that PETA lawyers can't hold copyrights?
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Mark (profile), 12 Sep 2017 @ 1:27pm

I WANT THE TRUTH!
Let the monkey take the stand! Was it even Naruto? Shapera is a better photographer! Get a good lawyer to cross examine the apes, cos the humans have no idea! ;-)
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TechDescartes (profile), 12 Sep 2017 @ 2:00pm

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.
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bob, 12 Sep 2017 @ 2:16pm

Re: confused
Maybe people just want the camera owner's signature.

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.
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bob, 12 Sep 2017 @ 2:18pm

PETA logo
I find it hilarious that PETA's logo has a rabbit on it. I guess the name really does stand for people eating tasty animals.
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Anonmylous, 12 Sep 2017 @ 2:52pm

Hmm...
I am still somewhat confused about why there was no attempt (that I read about) to argue that the published photo was cropped, framed, retouched and shrank prior to publication and that the published work might have been covered by copyright anyways. I'm neither a professional photographer or lawyer, but I don't know any photographer who publishes un-touched photos except for a few journalists.

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?
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Anonymous Coward, 12 Sep 2017 @ 3:16pm

"on issues like who holds the copyright on AI-created works (answer again: no one)"

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?
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TKnarr (profile), 12 Sep 2017 @ 3:17pm

Re: Hmm...
Because the suit was brought by PETA who have no interest in establishing that the photographer owns the copyrights.
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That One Guy (profile), 12 Sep 2017 @ 4:04pm

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.
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Lawrence D’Oliveiro, 12 Sep 2017 @ 5:56pm

In Human Society ...
... the flipside of having rights is that you (usually) also have responsibilities: responsibility to obey the law, pay taxes and so on.

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.
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Anonymous Coward, 12 Sep 2017 @ 6:17pm

Re:
Maybe an AI created work could/should be "owned" by the human that placed the canvas, plastic thread (for a 3D printer), metal bars, printer ink or other medium into the "hands" of the machine.
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Anonymous Coward, 12 Sep 2017 @ 7:40pm

I would have thought the monkey being in Indonesia would be a sufficient enough reason to not have to be "forced to acquiesce" to an American court ruling. Geographical - and with it, legal - boundaries are indeed becoming blurred.
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cpt kangarooski, 12 Sep 2017 @ 9:50pm

Re: confused
Just because a work is in the public domain doesn't mean people won't pay for copies of it. Go to any decent bookstore and you'll find copies of Shakespeare's plays, Dickens' short stories, and many other public domain works for sale. People buy them for a variety of reasons, including convenience or a preference for a particular edition. There's nothing wrong or unusual about it.
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Carrie (profile), 12 Sep 2017 @ 9:55pm

Vacating
For the legal record, its black letter law that parties can't agree to vacate a precedentjal opinion as part of a settlement. Parties try it all the time. So that won't work.
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Anonymous Coward, 13 Sep 2017 @ 12:00am

But animals!
They're so cute!
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MyNameHere (profile), 13 Sep 2017 @ 1:34am

100% of nothing
I think someone finally explained to the lame asses at PETA that the judgement was leading to the image going into the public domain and having absolutely no commercial value.

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.
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Anonymous Coward, 13 Sep 2017 @ 4:20am

Re: Re: confused
Yeah but the big money is in exclusivity. Which is just another form of scarcity. Abundant goods still have their worth but it's never close to that of a scarce good.

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.
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PAUL KEATING (profile), 13 Sep 2017 @ 4:41am

STUPID IS AS STUPID DOES......
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.
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Wendy Cockcroft, 13 Sep 2017 @ 5:59am

Re: STUPID IS AS STUPID DOES......
They've obviously bullied the poor chap with threats of further lawsuits if he doesn't. If that's true it's extortion and he ought to report it.
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GristleMissile (profile), 13 Sep 2017 @ 6:14am

Re: Re:
It's pretty simple really. AI is a tool used to create a work, just like a paintbrush or a camera. Whoever is using the tool owns the copyright.
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Anonymous Coward, 13 Sep 2017 @ 12:08pm

Re:
He'd better be careful - someone will hack into his account and post all _those_ photos.
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Anonymous Coward, 14 Sep 2017 @ 12:36am

Re: 100% of nothing
Funny how enforcing copyright seems to attract all the jackasses to take the reins...
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That One Guy (profile), 14 Sep 2017 @ 1:42am

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.
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Vikarti Anatra (profile), 14 Sep 2017 @ 4:02am

Re: Re: Re:
It's not that simple.
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.
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Zack, 18 Sep 2017 @ 7:04pm

Re: PETA logo
People Eating Tasty Animals: Certified nutcases for animals since 1980
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tp, 15 Apr 2018 @ 3:23am

Re: Re: confused
> Why would anyone pay for that photo that I can legally grab via a google search?

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.
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