22:25, September 11 272 0 law.com

2017-09-11 22:25:05
Monkey Authors Will Have to Wait Another Day for Copyrights

Self-portrait of a female Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia, who had picked up photographer David Slater’s camera and photographed herself with it. 

Aspiring monkey photographers will not be entitled to copyrights, at least for the foreseeable future.

People for the Ethical Treatment of Animals (PETA) on Friday gave up an appeal in which it’s sought to establish that a crested macaque who took the famous “monkey selfie” photograph is the rightful copyright holder.

PETA announced a settlement Monday with David Slater, the photographer who set up the camera equipment, and book publisher Blurb Inc.

In a joint statement, PETA and Slater said they agree that the case “raises important, cutting-edge issues about expanding legal rights for non-human animals” and that Slater will donate 25 percent of future gross revenues from the monkey selfie photographs to charitable organizations that protect the macaque’s Indonesian habitat.

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There was no mention of attorney fees, which are recoverable in copyright cases. Slater attorney Andrew Dhuey had vocally promised to pursue them following resolution of the case. “I have no comment, and no comment on why I have no comment,” Dhuey said.

Cooley special counsel Angela Dunning, who represented Blurb, likewise declined any comment.

A PETA spokesman said the terms would remain confidential, other than noting that “they were resolved to all parties’ satisfaction.” PETA general counsel Jeffrey Kerr said in a statement that the case “sparked a massive international discussion about the need to extend fundamental rights to animals for their own sake, not in relation to how they can be exploited by humans.” He said the settlement will “help protect and support [Naruto], his community of macaques, and their Indonesian home.”

PETA was represented by Irell & Manella partner David Schwarz.

The case generated a lot of headlines, but not much success in court. Slater and Blurb persuaded U.S. District Judge William Orrick of the Northern District of California that animals have no standing to assert copyright authorship under Ninth Circuit law. The Ninth Circuit sounded no more receptive during a July 12 oral argument, even raising questions about fees on appeal.

Slater, who lives in Wales, has described himself as broke despite the widespread reproduction of the monkey selfie photographs. He announced on his website last month that he would begin donating 10 percent of sales to a monkey conservation project in Sulawesi, Indonesia. PETA had also promised to donate any proceeds from the monkey selfies if it won the case. A couple of weeks after the Ninth Circuit argument Slater and PETA made a joint appearance on the BBC to promote animal rights. The two have been in settlement discussions at least since August 7.

Monday’s settlement could leave the door open for PETA to pursue a similar case in a different forum, the next time a monkey figures out how to take photograph, say some words or make music that has commercial value. As part of the settlement, PETA and the defendants are asking the Ninth Circuit to vacate both its appeal and Orrick’s opinion, or at least remand to Orrick for consideration of vacatur.

PETA argues that because Slater and Blurb argued that Naruto never had standing, it would be “just and proper” not to bind Naruto to the judgment. Slater and Blurb join in the request but not the specific reasoning.

Slater set out to take photos of the macaques in 2011. The parties dispute exactly how they were taken, but PETA alleged that after Slater set up his camera, Naruto deliberately pressed the shutter multiple times when he became aware of his own reflection in the lens. PETA and Dr. Antje Engelhardt, a primatologist who said she’d monitored the macaques for years, brought suit as Naruto’s next friends, saying the monkey should benefit from the copyright.

Orrick ruled last year that, under Ninth Circuit case law, animals do not have legal standing to bring lawsuits unless expressly provided for by statute. The Copyright Act makes no mention of animals, he wrote, and the Copyright Office has formally stated that “to qualify as a work of ‘authorship,’ a work must be created by a human being.”

Engelhardt dropped out of the case on appeal, and the Ninth Circuit judges sharply questioned at the July hearing whether PETA could establish next friend status on its own—and whether a monkey can legally hold a copyright.