Ninth Circuit Stops Monkeying Around And Denies En Banc Review Of The Monkey Selfie Case

from the it-ain't-over-till-its-over dept

Whatever will we do without the Monkey Selfie case rearing its not-actually-copyrighted head every few months? We might finally get to find out, now that the Ninth Circuit has declined to rehear the appeal en banc. This denial now makes clear that monkeys lack standing to sue for copyright, at least within the Ninth Circuit. Someday (hopefully not soon) we may find out what other Circuits have to say about primate copyrights, but for now we can finally be confident that they lack standing to sue over them here.

Provided that no cert petition is granted, of course. And given that this is a case that has thus far steadfastly refused to end, it is way too soon to be confident that this is truly the last we've heard from Naruto or any of his alleged next friends. We should at least know whether a cert petition's been filed in about three months or so, though (see Rule 13), so stay tuned...

Filed Under: 9th circuit, copyright, david slater, monkey selfie, naruto, standing
Companies: peta

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.

Filed Under: 9th circuit, copyright, david slater, en banc, monkey selfie, naruto

We Interrupt The News Again With Hopefully The Last Update From The Monkey Selfie Case

from the with-next-friends-like-these dept

And now for the moment you've all been waiting for: a decision from the Ninth Circuit in the Monkey Selfie case.

Upshot: the case remains dismissed, and the defendants get to recover attorney fees for the appeal. There's also relatively little to say on the copyright front. This case has turned almost entirely into litigation about standing and proven to be a significant wrench in the works for any future litigation anyone, but PETA in particular, might want to bring on behalf of animals.

First, the court skewers PETA over the quality of its "friendship" with Naruto, casting significant side-eye towards PETA's apparent settlement of the lawsuit, which led to its attempt to dismiss the appeal, while at the same time leaving some question as to whether Naruto himself was down with this settlement and plan to dismiss his appeal. From footnote 3:

We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something fromthe settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings from the monkey selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.” See Settlement Reached: ‘Monkey Selfie’ Case Broke New GroundForAnimal Rights, PETA, https://www.peta.org/blog/settlementreached-monkey- selfie-case-broke-new-ground-animal-rights/ (last visited Apr. 5, 2018). But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” see PETA, https://peta.org (last visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting pawn in its ideological goals. Yet this is precisely what is to be avoided by requiring next friends to have a significant relationship with, rather than an institutional interest in, the incompetent party—a point made by ChiefJustice Rehnquist in Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979). See infra page 9 for exact language.

But repudiating PETA's "next friend" standing doesn't end the inquiry. There is a 2004 case from the Ninth Circuit, Cetacean Community v. Bush, which established the precedent that animals might be able to sue for themselves, even without a "next friend" to do the suing for them. The court decides it has to defer to that precedent, although so reluctantly as to undermine its persuasive effect in future cases.

Reaching that conclusion didn't end the inquiry, however. Cetacean Community means that animals might be theoretically able to sue for themselves in the Ninth Circuit, but it doesn't mean they will necessarily have a viable claim. To figure out whether they do, we have to look at the applicable statute, which in this case is the Copyright Act. And here the court concludes that Naruto, being a monkey, has no standing to sue for copyright infringement.

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.

So there you go. Our long national nightmare of not knowing whether any random monkey might be able to sue for copyright infringement has been resolved. We may now go about our lives confident in the knowledge that they cannot, at least not in the Ninth Circuit.

Filed Under: 9th circuit, copyright, david slater, monkey selfie, naruto, next friend, public domain, standing
Companies: peta

Lawyer: Without The Monkey's Approval, PETA Can't Settle Monkey Selfie Case

from the has-the-monkey-settled? dept

Ted Frank is a well-respected lawyer who has heroically dedicated much of his career to stopping bad legal practices, including sketchy settlements in class action lawsuits. Now he's taking action in another case involving a sketchy settlement: the monkey selfie case. As we highlighted earlier this week, while it was no surprise that PETA and photographer David Slater worked out a settlement agreement to end the ridiculous lawsuit PETA had filed, it was deeply concerning that part of the settlement involved PETA demanding that the original district court ruling -- the one saying, clearly, that animals don't get copyrights -- should be thrown out.

It took just a few days for Frank, on behalf of CEI, to file a wonderful and hilarious amicus brief with the court. There are a bunch of reasons why vacatur is improper here, but the real beauty of this brief is in pointing out that Naruto -- the monkey -- has been left out of the settlement, and thus not "all parties" have agreed. No, really.

PETA continued to assert that it acted as Naruto’s next friend before this Court, after Dr. Engelhardt voluntarily dismissed her appeal before briefs were filed.... The defendants argued that because Dr. Engelhardt was the only person pleaded to have any relationship with Naruto, PETA could not demonstrate the “significant relationship” required to establish next friend standing.... In response, PETA again asserted in writing and at oral argument that it acts as Naruto’s next friend....

Incredibly, PETA now represents that it entered into settlement with the defendants alone—without Naruto.... The settlement instead “resolves all disputes arising out of this litigation as between PETA and Defendants.”... This statement makes no sense. PETA did not have claims against the defendants. PETA argued repeatedly it was a next friend, a nominal party. For what their worth, all claims arising out of this litigation belong to the sole plaintiff, Naruto....

The underlying complaint does not plead a case or controversy between PETA and defendants, and this alone bars vacatur. Without standing, PETA may not move for vacatur. It does not matter that the defendants half-heartedly moved for vacatur under their settlement agreement “without joining or taking any position as to the bases for that request.”... The losing party—Naruto—must carry the burden of proving “equitable entitlement to the extraordinary remedy of vacatur.”...

No Naruto, no standing, no vacatur.

No Naruto, no standing, no vacatur. What a world we live in.

PETA’s too-clever-by-half argument simply does not work. PETA cannot claim to be a qualified next friend, then pretend to be unqualified when it suits them for the limited purpose of vacating an unfavorable precedent. Their position is especially untenable because PETA still “contends that it can satisfy the Next Friend requirements, or should be permitted the opportunity to do so before the district court, if the appeal is not dismissed.”

Alternatively, Frank argues that since Naruto is not technically a part of the settlement, perhaps the appeals court should reject the settlement and issue its opinion anyway:

Alternatively, if the Court takes PETA’s argument literally, and if PETA agreed only to stop acting as next friend for Naruto, leaving the monkey without an advocate, such a selfish settlement would not extinguish Naruto’s appeal. A stipulation signed only on behalf of the next friend (a nominal party) cannot moot the underlying controversy with the actual party. To the extent that PETA insists this occurred, they have simply ceased to adequately represent their supposed friend Naruto. If so, PETA’s stipulation should be disregarded.

Frank also takes a stab at PETA's whole "next friend" argument and why it's so silly in a footnote. First, he notes that if the court is concerned that Naruto is now "friendless" at the court, it could appoint a guardian ad litem, with the following footnote mocking PETA's claim to "next friend" status.

The Competitive Enterprise Institute has as much of a personal relationship with Naruto as PETA pleaded (i.e., none), so might plausibly serve the role as well as PETA has. However, any next friend or guardian should have a bona fide personal and non-ideological interest in the incompetent person—putting aside the question of whether animals may be persons under Fed. R. Civ. Proc. 17.

And, of course, who knows if Naruto (or some other "next friend") won't sue again:

In any event, if Naruto’s claims were indeed not settled by PETA, vacatur should be denied because “Naruto” (that is, someone claiming to be his “next friend”) would remain free to file suit again for further acts of alleged infringement.

While this is a bit of a throwaway line, it's actually important -- and it's one that David Slater should pay attention to. Allowing PETA to toss out the lower court settlement might not end his legal troubles over this matter. Anyone else alleging to be Naruto's "next friend" might go right back to court.

Finally, Frank notes that just because the parties have announced a settlement, that doesn't mean the court can't reject it and issue a ruling -- providing guidance to other courts in the circuit on this issue.

In Americana Art, the panel chose to issue an affirming opinion notwithstanding the dismissal because of the “opportunity to provide additional guidance to the district courts.”... PETA previously stated to this Court that the case presents “a question of first impression [and] the issue is not a trivial one.” ... Given the judicial resources already expended at the district-court and appellate level, the Court can rationally conclude, especially given that PETA is attempting to elide the question of whether it is or is not a “next friend,” that, if the Court is already close to a decision in this straightforward case, it should provide “guidance to the district courts” by issuing a decision that would not require much additional expenditure of judicial resources

I would be pleasantly surprised if the 9th Circuit actually keeps the case going and issues an opinion -- but at the very least, it shouldn't ditch the district court ruling.

Filed Under: copyright, david slater, monkey selfie, naruto, precedent, public domain, settlement, ted frank, wtf
Companies: cei, peta

Monkey Selfie Case May Settle: PETA Knows It'll Lose, And The Photographer Is Broke

from the so-settlement-makes-sense dept

It may finally be ending. The dumbest copyright lawsuit we've seen in a long time (and that's saying a lot) about a silly topic. We've been covering the story of the monkey selfie from basically the very beginning (and often get mentioned in stories about it, as we'll discuss below). But, the story that began as a weird quirk of explaining how copyright law works -- and how many people don't believe it works the way it does -- got stupid in a hurry once PETA and the formerly respected law firm of Irell & Manella got involved. And, now, finally, the case may be ending in a settlement.

A settlement totally makes sense here, because the plaintiff knows it's going to lose in embarrassing fashion if the case moves forward, and the defendant is broke, in part because of this case (though some people -- including the photographer -- appear to be partially blaming us*). If you somehow haven't followed this story the very, very quick recap is that a photographer named David Slater went to Indonesia where he was taking photographs in a national park, and at some point at least one (and possibly more?) macaque monkeys played with his camera and took some photos with it, including some selfies, which were mildly amusing. As we noted in a long discussion on this, technically the photos are almost certainly in the public domain (read that post to learn why if you don't believe it). David Slater disagrees with this and insists the copyright is his, and has had various representatives at times send totally bogus and severely confused threat letters. However, nearly all serious legal commentary has recognized that the works are in the public domain. That's just how copyright law works, whether you like it or not.

Either way, there's one thing that Slater and I agree on: the monkey doesn't hold the copyright... and PETA (an organization that often seems to care more about publicity stunts than animals) two years ago kicked off a monumentally dumb lawsuit against Slater, claiming that the monkey held the copyright and that PETA represented the monkey. And, again, this can't be stated often enough: PETA brought on a previously respected copyright law firm, Irell & Manella, to handle this case and they proceeded to make some really crazy arguments, including suggesting that every work must have a copyright -- apparently writing the public domain right out of the law.

Either way, PETA lost badly in court, but still appealed. That appeal has not gone well. At a hearing last month, it appears that the judges could barely contain their laughter at just how stupid a lawsuit this really is. PETA knows it's going to lose and lose badly -- and thus has every incentive to settle this case before such a ruling is released.

As for Slater, well, he's been telling reporters that he's completely broke -- so clearly he has incentive to just get the case over with as well. And, I feel for him. Being sued over a completely bogus claim totally sucks. I know that all too well. So it's pretty sensible that all the parties in the lawsuit have told the court to hold off on ruling while they work out a settlement.

And, really, what a despicable case this was by PETA and Irell & Manella. Yes, I know that PETA's whole schtick is to do ridiculous publicity stunts, but this one had real costs. It wasted a bunch of time in the courts, and was really damaging to David Slater, who didn't deserve to be dragged into court by such an organization. One hopes that, at the very least, part of the settlement includes an apology.

---

* So, this is kind of a separate issue, but Slater occasionally points to Techdirt's articles about why the photos are in the public domain as part of the problem -- and the recent reporting on his claims of being broke have more or less repeated this. The first report we saw, in the Guardian, mentions us and Wikipedia as "refusing" to take the images down -- which... leaves out a big part of the story (i.e., it was in the context of explaining why the work was in the public domain under copyright law). We actually had a few angry people contact us over the Guardian story not realizing the details.

But that was nothing compared to what happened when the Daily Mail, the UK's worst newspaper, basically tried to rewrite the Guardian story and twisted our role even more:

His problems began when Californian-based blog Techdirt and the online encyclopedia Wikipedia (whose mission statement is 'to empower and engage people around the world to collect and develop educational content under a free licence or in the public domain') muscled in.

"Muscled in?" Guys, all we did was write (accurately, I may add!) about the copyright issues when a monkey takes a selfie. That's not "muscling in." That's journalism. The Daily Mail might want to try it some day.

They claimed the image was uncopyrightable because the monkey was the creator — and so they uploaded the picture onto their websites, free for anyone to use. To Dave, this was an assault on his livelihood.

Understandably, he asked Techdirt and Wikipedia to stop using the pictures — but they refused. Faced with little choice, Dave decided to sue for up to £18,000, saying: 'There's a lot more to copyright than who pushes the trigger.'

At least the Daily Mail mentions that we explained why the work is in the public domain, but they make it sound like we were the ones doing the initial distribution of the photo. That's crazy. It was all over the internet. In fact, uh, we first read about the monkey in the Daily Fucking Mail. Seriously. Go look at the link in our first story. You want to know where we first got the photograph? The Daily Mail. Yet now the Daily Mail is blaming us for making the photo available? Are you fucking kidding me?

And, I have no idea what the hell they're talking about saying that Slater sued us for £18,000. This is the first we've heard of it.

But, here's the thing: after the Daily Mail article went online, we started getting quite a bit of hate mail, accusing us of bankrupting Slater. I feel bad for Slater, as his situation sounds bad. But we didn't sue him. We didn't take away his livelihood. We explained the law. That's it. You might not like the law, but the law would have been the same whether or not we wrote about it. Slater wouldn't have had the copyright either way. It's fair to blame PETA for hurting Slater, because they sued him for no damn reason at all. But we just reported on the situation accurately -- something it would be nice if the Daily Mail tried once in a while.

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

Primatologist Tells Court That Macaque Monkeys Are, Like, Super Smart, So They Should Totally Get Copyrights

from the oh-really-now? dept

The case of the monkey selfie keeps getting weirder and weirder. I'm not going to rehash the whole damn story again -- just click the monkey selfie link above and scroll through the posts. Here's the super short version though: A British photographer named David Slater left his camera on the ground in an Indonesian jungle, where a macaque monkey (which we're now, much later, told is named Naruto, though there's some dispute over this) approached the camera and took a selfie. There were all sorts of debates online about whether or not there was any copyright in the photo and, if so, who owned it, with Slater repeatedly insisting that he did (and occasionally having representatives threaten us). A few years later, out of the blue came PETA, claiming that it represented the monkey (Naruto) and was suing Slater for copyright infringement for publishing a book with the photos. A judge, rightly, tossed out the lawsuit, pointing out (as we had argued from the very beginning) that a monkey has no right to a copyright, and the law only applies to human persons. PETA and its actually well-known and until now mostly respected law firm, Irell & Manella, have appealed the ruling.

And, now, believe it or not, PETA has gotten a primatologist and apparent "macaque expert" named Agustin Fuentes to file an amicus brief supporting the idea that a macaque monkey taking a selfie should hold the copyright in the image. Fuentes may be a macaque expert, but he's not much of a copyright expert... and it shows. The brief mainly focuses on how smart macaque monkeys are, as evidence that being smart somehow means it deserves the copyright.

Naruto, like other macaques, had likely made the connection between manipulation of the camera as an item and the sound of the shutter and the changing image in the lens as the shutter clicked. This may have been interesting for Naruto as he was noted as performing this behavior many times. It is likely that he had seen the human manipulation of the camera and heard the sounds it made and, as is common for macaques, became curious to investigate it on his own. This in no way assumes Naruto had any cognizance of the concept of a photograph but rather that the actions and noises made by the camera were enticing and that through explorative manipulation Naruto was able to cause the camera to make such sounds/actions. Naruto intentionally engaged in interactions with the camera.

That's all nice and stuff, but is has fuck all to do with the question of copyright. The purpose of copyright is to provide the incentives to create works so that the public can enjoy them. It's the intent of copyright to create a limited monopoly such that the author of the work can use that artificial monopoly to earn money for some period of time, and those profits help incentivize the creation.

Yet here, Fuentes basically admits that it's not the copyright that's the incentive here, but the neat clicking sound and what happens when the shutter is pressed.

Particularly relevant for this case, macaques can frequently understand basic correlations between acts of object manipulation and specific results. There is no question that macaques manipulate material objects with an expectation of specific outcomes. They understand, for example, that by hitting snail shells with rocks, they can crack open and retrieve the snail. Naruto’s behavior in creating the photographs in dispute is consistent with a macaque’s interest in and capacity for sophisticated object manipulation. Naruto certainly understood that he was intentionally engaged in actions with an object that was stimulating. He could recognize the association between his actions and the shutter movement and sound. These photographs are not the result of an accident; they result from specific and intentional manipulation of the camera by Naruto.

Again, even if true, that means absolutely nothing for the copyright question. The laws apply to people, not to animals, unless expressly written that way. That's a basic tenet of the law. The only weak attempt to tie this back to the copyright question is basically Fuentes and his lawyer arguing that "the law changes based on new data."

Some of the Supreme Court’s most significant modern decisions have hinged, at least in part, on attempts to understand emerging science and empirical data.

This is also true... but irrelevant. It absolutely does not matter. And, on top of that, he's introducing no new "science" here other than "macaque monkeys are smart." So what? That has no bearing on whether or not a monkey gets a copyright -- to which the answer is as pretty definitive: Hell no.

Filed Under: agustin fuentes, copyright, david slater, monkey selfie, naruto, primatologist, public domain
Companies: peta

The Selfie-Taking Monkey Who Has No Idea He Has Lawyers Has Appealed His Copyright Lawsuit

from the satire-is-dead dept

Welp. Here we go again. For many, many years, we've been tracking the insane legal situation of the selfie-taking monkey, whose name we were told only recently is "Naruto." Early on in this saga, back in 2011, our focus was on how the photographer whose camera was used, David Slater, had no legitimate claim to the copyright in the image, in large part because the copyright goes to whoever took the photo, and the copyright cannot go to a monkey, because copyright law is limited to "persons." Every so often Slater would pop up somewhere or somehow and yell about this -- twice representatives of his even threatened us with completely bogus legal action.

However, things took a turn for the even more bizarre a year ago when PETA, an organization that sometimes appears to focus more on professional trolling rather than on the "ethical treatment of animals" as its name suggests, claimed to represent the monkey (Naruto!) and sued Slater himself for falsely claiming the copyright. While we agree that Slater doesn't hold the copyright, neither does the monkey, because no one holds the copyright.

Amazingly, PETA, claiming to represent the interests of an Indonesian monkey, somehow secured the services of a really big name law firm, Irell & Manella, whose name should always be associated with the fact that it took this insane case. Irell & Manella (again, somehow, this is considered a respected law firm) took the nutty position that there must be a copyright in the image, and thus the monkey deserves to get it. It completely ignores the fact that not everything gets a copyright. It's as if the lawyers at Irell & Manella don't even understand how copyright law works.

The judge in the case made quick work of this and confirmed, as pretty much everyone already recognized, that a monkey can't have copyright. But, this is PETA, and PETA won't give up until the trolling has completed its course. So it appealed and it has now filed its opening brief.

I have no idea if David Schwartz at Irell & Manella is doing this pro bono or actually wasting PETA's money here, but if I were a PETA supporter/donor, I'd be pissed off that this is the way the organization is burning money:

The Constitution authorizes Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. art. I, § 8, cl. 8. Neither the Copyright Clause nor the Copyright Act contains on its face a limitation solely to authors with human attributes or characteristics. The district court erred in carving out such an exemption here. It is not necessary—indeed it is antithetical to the purpose of the Copyright Act—to specify who can be an author, as that question is determined by looking at the attributes of the work sought to be protected. The Copyright Act protects “original works of authorship,” not works of “human authors.” See 17 U.S.C. § 102. Moreover, the Monkey Selfies have all the attributes required for protection under the Copyright Act. To exempt them from protection on the sole ground that Congress did not specify that animals can be authors assumes erroneously that such specification would have been necessary.

This is pure nuttiness. The monkey selfies do not have all the attributes required for protection, because protection only goes to human beings. Why? Because copyright is supposed to act as an incentive to create. The monkey has no fucking clue about the copyright, and it had nothing to do with the incentive to create. Because it's a monkey. In Indonesia. Named Naruto. Who has no idea that some ridiculous lawyers are now in an appeals court in California pretending to represent its "interests."

Since enacting the Copyright Act of 1790, Congress and the Supreme Court have instructed that the copyright laws should be interpreted liberally in order to safeguard the “general benefits derived by the public” from works of authorship. Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 429 (1984). Because copyright protection exists primarily to advance society’s interest in increasing creative output, it follows that the protection under the Copyright Act does not depend on the humanity of the author, but on the originality of the work itself. The Copyright Act was intended to be broadly applied and to gradually expand to include new forms of expression unknown at the time it was enacted. Congress and the courts have explained that copyright protection is critical to ensuring the general public has access to works of authorship. The public places value in these works—and, self-evidently, so do the Defendants.

I cannot believe that lawyers are actually using the case that legalized the VCR (Sony v. Universal Studios) as the basis for arguing a monkey gets copyright. And copyright protection for a monkey is in no way critical for "ensuring the general public has access to works of authorship." It is not as if the monkey having or not having the copyright changes, in any way, the monkey's incentive to click buttons on cameras left on the ground.

The lawyers pretending to represent Naruto go on to claim that even though there's pretty clear 9th Circuit precedent saying that animals lack standing to sue unless expressly granted in the law, that doesn't apply to copyright law, because copyright law is just so awesome. And they continue to claim that copyright is necessary because the work is so valuable -- which is, you know, not how copyright law works:

Yet if animals cannot be authors, there is no copyright protection for their works.... This is fundamentally at odds with the fact that “[c]opyright protection extends to all ‘original works of authorship fixed in any tangible medium’ of expression.” ... It is also antithetical to the public interest, and hence, the stated purpose of the Copyright Clause. There is no doubt that the general public has an interest in works of art, regardless of their authors’ characteristics or attributes. The tremendous interest in Naruto’s work and Defendants’ attempts to exploit that interest (and to bar others from doing so) only buttresses this conclusion.

The idea that the lawyers at Irell and Manella are literally arguing that the public domain is "antithetical to the public interest" should mark them as complete numbskulls on copyright law.

One hopes that the 9th Circuit will make quick work of this case and toss it out. But, of course, there is the fear that the 9th Circuit will do what it does all too often in copyright cases... and come out with some nutty decision. Remember, this is the circuit that (thankfully, only for a short while before it reconsidered) decided that there was a brand new separate copyright for every actor's performance in a film -- so you could see the case come out with some totally ridiculous result. So, stay tuned. Plenty of us will be, though I can assure you that a certain macaque monkey in Indonesia could not care any less about these proceedings, even if he's officially the plaintiff in the case.

Filed Under: 9th circuit, copyright, david slater, monkey selfie, naruto
Companies: irell & manella, peta

PETA, Pretending It Can Represent A Photogenic, Selfie-Snapping Monkey In Indonesia, Has Appealed Its Copyright Loss

from the this-case-is-bananas dept

When we last we checked in with Naruto the monkey, he was suffering a humiliating loss in a California courtroom. It was enough that it probably wiped this smile right off Naruto's face: Aw, who are we kidding? The monkey has no clue about any of this. It's a monkey! The case is really about a giant publicity stunt by PETA, which is pretending to represent the monkey and claiming that a monkey taking a selfie can get a copyright. Incredibly, PETA hired a big time, previously well-respected law firm by the name of Irell & Manella, which argued with apparently straight faces that someone must own the copyright, and thus the monkey (and PETA) were the most obvious choice. But, that's something anyone with even the most marginal knowledge of copyright should know is not true, because we have something called the public domain. No one needs to hold the copyright because there might not be a copyright (and in this case, there is none).

Anyway, back in January, district court judge William Orrick explained all of that to PETA and its fancy lawyers, but gave them a chance to amend the complaint and refile. When the deadline passed with nary a smiling monkey complaint, many of us figured that PETA had moved on to some other lame publicity stunt. But, no, this weekend PETA's bananas law firm announced a planned appeal, filing the necessary notice with the district court.

In other words, the 9th Circuit -- home to some of the wackier copyright rulings ever -- will now hear a case about whether or not an Indonesian monkey, who took a selfie, gets the copyright. The whole idea is crazy, but remember, this is the same appeals court that once (briefly) ruled that an actress had a copyright in her own performance in a movie.

Filed Under: 9th circuit, appeal, copyright, david slater, monkey selfie, naruto
Companies: irell & manella, peta

Monkey See, Monkey Do, But Judge Says Monkey Gets No Copyright

from the sorry-folks dept

A few weeks ago, we wrote about some details from the court hearing in the ridiculous monkey selfie case in which PETA (the People for the Ethical Treatment of Animals) claimed not only that it represented Naruto, an Indonesian macaque monkey, but that the monkey should hold the copyright on this selfie: However, as we've explained time and time again (much to the chagrin of David Slater, the photographer whose camera was used to take the photo), the photo is clearly in the public domain, as it's long been held that the Copyright Act only applies to human authors. In court a few weeks ago, the judge made it clear he didn't believe PETA had any case at all, but Judge William Orrick has now come out with his written opinion in the case explaining his reasoning why. Not surprisingly, it more or less tracks with what he said in court: there is no evidence that the Copyright Act applies to monkeys, and thus, case dismissed -- with leave to amend. The judge cites numerous cases in which the courts clearly say the Copyright Act means a "person" when it refers to author... and PETA cited a grand total of zero cases that argued otherwise:

Here, the Copyright Act does not “plainly” extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit have repeatedly referred to “persons” or “human beings” when analyzing authorship under the Act. See, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) (“[A]n author superintends the work by exercising control. This will likely be a person who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be.”) (internal quotation marks, citations and modifications omitted) (emphasis added); Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997) (“For copyright purposes, however, a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].”) (emphasis added); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (“As a general rule, the author is the party who actually creates the work, that is the person who translates an idea in a fixed, tangible expression entitled to copyright protection.”) (emphasis added). Despite Next Friends’ assertion that declining to grant a monkey copyright to a photograph “would depart from well-established norms,” Next Friends have not cited, and I have not found, a single case that expands the definition of authors to include animals.

And the judge is also convinced by the Copyright Office rejecting non-human copyrights as well:

Moreover, the Copyright Office agrees that works created by animals are not entitled to copyright protection. It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014 (the “Compendium”). “When interpreting the Copyright Act, [the courts] defer to the Copyright Office’s interpretations in the appropriate circumstances.”... In section 306 of the Compendium, entitled “The Human Authorship Requirement,” the Copyright Office relies on citations from Trade-Mark Cases, 101 U.S. 94 (1879) and Burrow-Giles to conclude that it “will register an original work of authorship, provided that the work was created by a human being.”... 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.”

And thus, sucks for Naruto (and PETA):

Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art.” ... Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.

Filed Under: copyright, david slater, monkey selfie, monkeys, naruto, public domain
Companies: peta

Judge In Nutty PETA Monkey Copyright Trial Skeptical Of PETA's Argument, But Let's Them Try Again

from the monkey-business dept

As you know, we've been covering PETA (People for the Ethical Treatment of Animals)'s absolutely insane lawsuit claiming to represent the monkey who took this selfie: We'd been covering the story of that selfie for years, since first noting that it was almost certainly in the public domain, as copyright law only recognizes human authors. This discussion spurred not one, but two, separate legal threats made against us by representatives of David Slater, the guy whose camera the monkey used. It's also gotten Wikipedia involved (after Slater asked the site to not allow the image to be used, while Wikipedia agreed with us that the image is public domain).

However, the case took a turn towards the absolutely surreal when PETA stepped in, claimed that it represented the monkey (which it decided is named "Naruto") and that the monkey did, in fact, hold the copyright. It also sued Slater, who despite saying mean things about us in particular, we side with in this case in at least saying that PETA has zero claim, and it's ridiculous that they've dragged Slater into court. Since then, the legal arguments have been increasingly surreal.

Yesterday in San Francisco, Judge William Orrick, held a hearing over the request by Slater (and his publishing partner Blurb, who is a co-defendant) to dismiss the case entirely, because it's about a freaking monkey copyright. The judge, apparently, was somewhat amused by the whole situation, but did not appear even remotely sympathetic to PETA's arguments (for which, I should remind you, the organization is using a very well-known IP law firm, Irell & Manella). Judge Orrick didn't dismiss the case outright, but rather gave PETA a chance to amend the suit after noting some issues with it as it stands. PETA now has to decide if it's even worth it to submit a new complaint, recognizing that the judge may not be particularly open to their whole "animals can get copyright" arguments.

Reporter Sarah Jeong, who attended the hearing, noted some of the more insane arguments from PETA's lawyers (again, from a big, well-recognized law firm), including the idea that "if there's an author, it follows that there must be a copyright" (that's flat out false), and if there's "value" in the image, that also means there must be a copyright. Wrong wrong wrong wrong. And thankfully, the judge appears to recognize that. Oh, and how can I forget the argument that this is just like how slaves couldn't own patents before the 14th Amendment. Except this case is nothing like that (at all).

Anyway, the case isn't over yet. PETA might decide to walk away, but since this is all just a giant publicity stunt for PETA (don't worry, we didn't forget that!), that seems unlikely. It's likely that they'll try again and get laughed out of court.

Filed Under: copyright, david slater, monkey selfie, naruto, peta, public domain
Companies: blurb, peta