IP: Copyright

Monkey-Selfie Case Settles

monkey selfieThe famous monkey selfie (© either David Slater or nobody, 2011)

It seems like only yesterday, but was in fact over six years ago, that I first mentioned the dispute over who, if anyone, holds the copyright to the image above, which was taken by the pictured monkey with a photographer’s camera while he (the photographer) wasn’t looking. I then continued to mention it:

Legal Questions Raised by Success of Monkey Photographer” (July 7, 2011)

Battle Over Monkey Photos Begins” (July 13, 2011)

In Defense of Monkey Copyright” (also July 13, 2011)

Copyright Office Weighs in on Monkey Pictures” (Aug. 22, 2014)

Monkey Loses Copyright Battle” (Jan. 7, 2016)

The monkey—represented by People for the Ethical Treatment of Animals, itself represented by Irell & Manella—appealed to the Ninth Circuit, but as Techdirt reported Tuesday, the parties have now filed a joint motion saying that they have settled the case and asking the court to dismiss the appeal.

Remember that this lawsuit was filed by PETA—acting as “next friend” of the monkey Naruto—against the photographer, David Slater, and his publishing company after they published a book with the monkey selfie in it. Slater may or may not hold the copyright to this picture (it may be in the public domain), but PETA’s standing to sue depended entirely on whether nonhumans can legally hold a copyright under U.S. law. The district court held they cannot, and while the Ninth Circuit has not yet ruled, it seemed pretty clear from the comments made at oral argument that the panel was going to affirm. In August, the parties asked the court to hold off on a ruling because they were discussing settlement, and the recent filing announces that a settlement has been reached.

I don’t think the exact terms of the settlement have been announced, although PETA disclosed that Slater has agreed to donate 25 percent of any future earnings from the photo to Indonesian-monkey-related charities. He has also agreed not to contest the dismissal of an appeal he was almost certain to win (or, at least, that PETA was almost certain to lose), and in fact the motion to dismiss the appeal also asks the court to vacate the district court’s judgment. In other words, it would be as if the lower court never ruled at all.

Techdirt suggests that PETA wants this because it’s planning to bring similar lawsuits in the future and so doesn’t want that bad precedent on the books. It certainly doesn’t want the impending bad Ninth Circuit decision on the books, but that wouldn’t necessarily explain the motion to vacate the lower court’s ruling. There’s other precedent out there, plus vacating the judgment won’t mean it’ll be forgotten, just that it wouldn’t be technically binding. (It’s a district-court decision, so at best it’d only have been binding in the Northern District of California anyway.)

I think the better explanation is that under U.S. law, the “prevailing party” in a copyright case can ask the court to make the losing party pay its legal fees, and PETA preferred to work that out with Slater rather than have him seek and possibly get a bigger award from the court. That means the settlement involves PETA paying Slater directly—something it really should do since the lawsuit was basically for publicity reasons, and probably cost Slater a lot of money in legal fees. Slater has obviously agreed not to challenge the dismissal or vacatur, and I can’t imagine why he’d do that if PETA wasn’t paying him.

It is still not clear whether he holds the copyright, though. Most likely it’s in the public domain, which raises the issue whether the 25% provision is worth anything. I think it’s worth something, because Slater can still sell his book, for example, even if one or more pictures in it are in the public domain. He couldn’t keep other people from using the picture, though, which limits the value. But I would guess that like the lawsuit itself, the 25% provision is mostly for show anyway.

My guess would be that the Ninth Circuit will dismiss the appeal (though I wish it wouldn’t), on the grounds that the settlement makes it moot, but it won’t vacate the district-court ruling. PETA’s argument there is based on the rule that a judgment should be vacated if a party’s appeal is “frustrated by the vagaries of circumstance,” on the theory that the party “ought not in fairness be forced to acquiesce in the judgment” that might have been overturned. First, this wasn’t frustrated by a vagary, it was ended by settlement. But PETA’s real argument is that the settlement was between it and the defendants, and so Naruto the monkey “should not be ‘forced to acquiesce'” in the judgment that he lacks standing to sue. But Naruto was never a party to begin with, so I don’t see how he’s being “forced to acquiesce” in anything.

While I couldn’t reach him for comment, I doubt he cares one way or the other about whether the judgment stands. Hopefully, he’s still just as happy as he looks in the selfie, and will stay that way.