July 13, 2017

Can PETA sue on behalf of that monkey that took a selfie and might therefore own the copyright to the photograph that came from the camera David Slater set up?

You may be familiar with the monkey selfie copyright story. It's been around for years. But it's in the news today because the 9th Circuit Court of Appeals heard oral argument in a case that the People for the Ethical Treatment of Animals brought against Slater on behalf of the monkey. PETA claims to know the particular monkey, Naruto, and to be in a position to represent him. The judges noticed that the text of the copyright statute doesn't square up with the idea that a monkey could own a copyright:
“There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto,” said Judge N Randy Smith. “What financial benefits apply to him? There’s nothing.”

At one point, Judge Carlos Bea considered the question of how copyright passes to an author’s heirs. “In the world of Naruto, is there legitimacy and illegitimacy?” Bea asked. “Are Naruto’s offspring ‘children’, as defined by the statute?”
Meanwhile, Slater is said to be too poor to attend the hearing or to pay his lawyer or to afford the camera equipment he needs to carry on as a photographer. But Slater’s publisher has a lawyer. One of his arguments is that Naruto is the wrong monkey:
“I know for a fact that [the monkey in the photograph] is a female and it’s the wrong age,” he said. “I’m bewildered at the American court system. Surely it matters that the right monkey is suing me.”
It's sad if the loss of control of this popular photograph has derailed Slater's career. I understand feeling aggrieved, but he could have let it go and tried to leverage a career on all free publicity and interest in his work. But perhaps he couldn't. Without the copyright, what's the point in setting up more animal selfies, and what are the chances he'll get another miracle smile from an animal?

55 comments:

traditionalguy said...

This sounds profoundly Racist.

David Begley said...

If PETA loses in the 9th Circuit....

Bob Ellison said...

If the monkey wins, does that mean National Geographic would either have to sacrifice most of its wildlife work to the monkeys, birds, and zebras in them, or require them to sign contracts or waivers? The monkeys and the birds could do that, maybe, but the zebras might have to make do with a hoof-print.

Equipment Maintenance said...

"Surely it matters that the right monkey is suing me.”
That is the funniest thing ever said in the English language.

Tarrou said...

When lawyers are involved, the right monkey is always suing you.

Dave from Minnesota said...

Stuff White People Like

Bay Area Guy said...

What a joke. The Left wants monkeys to have rights to sue people to enforce copyrighted material? Oy vey.

Psota said...

Yeah this guy's opponents are using the Law to abuse him.

First Wikipedia tried to use his photo for free (no word on whether Wikipedia ever had to pay him when he ultimately prevailed).

Now PETA seems to be using this as a means of obtaining animal rights by judicial fiat.

Sounds like it's wearing him down mentally. I mean there's no reason for him to consider dog walking or other such careers unless the joy of taking photographs has been lost for him.

Etienne said...

All my life I have kept two books. 1) profit, and 2) losses.

The object, in the game of life, is to keep book 1 more than book 2. If book 2 is even or more than book 1. You are failing at life. You are a loser at life.

There is no trophy (copyright) that is worth keeping, if the above is the rule.

Sometimes you have to swallow your pride. Unless you can afford to go toe-to-toe with a deep pocket adversary, you need to exit the battlefield.

It would have profited him to lose, as it would have made his adversary look stupid.

sparrow said...

PETA regularly teeters on the edge of madness. The 9th Circuit demeaned itself by taking the case.

Dust Bunny Queen said...

Surely it matters that the right monkey is suing me

Evidently, in America, any monkey can bring a suit to court. It would be even more amusing if the monkey wearing an actual suit as well. A tiny well tailored suit. Bonus points if it is a suit like the one in Cousin Vinny

Fernandinande said...

The story of the monkey selfie begins in 2011,

That's only six years.

“I’m bewildered at the American court system.

Hint: it's basically a scam. See: "begins in 2011".

Surely it matters that the right monkey is suing me.”

He shouldn't even bring that up since it's ridiculous to think that a monkey can own something which it can't comprehend.

Fernandinande said...

Next: a cable release owns the pictures it "took".

BDNYC said...

Does the 9th Circuit grant oral argument in all cases, like the Second Circuit does? If not, then this is an outrageous abuse of judicial (i.e., public) resources. What a stupid, frivolous, dumb, pointless legal issue to resolve. Just issue a summary order ruling against PETA.

glenn said...

Just another spank them and send them to bed hungry story.

Laslo Spatula said...

Think of all the cute cats on the Internet, queuing up for payment for their photos and videos.

Thank God cats can't queue.

I am Laslo.

Fernandinande said...

John Shaw said the nature photography business was flooded trust-funders, so he started writing books to survive. (Great books!)

Franklin said...

"what are the chances he'll get another miracle smile from an animal?"

Under PETA's reading of the law, a judge would simply order all the animals in the jungle to be at the courthouse on August 31 at 11am and to all hold still and smile for a photograph as a form of restitution. Surely that would make this photographer famous.

clint said...

I wonder... the Guardian publishes an article about how the photographer has not been paid for the use of his photograph... and prints the photograph in the article.

Question: Did the Guardian pay the photographer?

Roy Lofquist said...

There's lawyers and judges and people. The people have money. The people have too damned much money and it's not fair to lawyers and judges.

John Borell said...

Property rights for animals? To quote the Bard, "That way madness lies."

Psota said...

Next we'll have animal tort claims. The calves will sue the butcher for wrongful death after the cow's disastrous trip to the slaughterhouse and the bull will sue for loss of consortium.

Big Mike said...

Just another publicity stunt by PETA. Personally I prefer the naked models demonstrating against furs, but I can understand why a female law professor would be more attracted to this case. I read the National Geographic article about Naruto and his fellow monkeys, and he's actually pretty far down the pecking order. Any benefit you give him, the more dominant monkeys in the troop will take them away, probably injuring him in the process.

A couple years back PETA made the news by "rescuing" a family's Chihuahua from the family's front porch and later put it down. They did send the family a fruit basket to express PETA's remorse.

tcrosse said...

But wait, there's more ! Republicans' voter suppression effort is disenfranchising monkeys and our other brother, sister, and transgender animals.

gspencer said...

Did Naruto attend the hearing?

mockturtle said...

It would not surprise me if my nephew's wife were representing the monkey in this case. I'd rather not know for sure.

Jack Richardson said...
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Matthew Sablan said...

Do the people on Candid Camera own the copyright for their performance, or do the people who set up the hidden cameras and create the situation own it?

Jack Richardson said...

In 1947 R. A. Heinlein wrote the short story, Jerry Was a Man, about a closely analogous lawsuit.

Pettifogger said...

Can these schmucks show authority from the monkey to represent him? Can I intervene claiming to be the sole legitimate representative of the monkey? If we bring the monkey into court to choose a representative, can I bring a banana?

Dude1394 said...

That this piece of excrement is actually being adjudicated says a lot more about the judiciary being a bunch of monkeys than anything else.

It used to be, that you didn't worry so much about the actual letter of the law because there was some common sense in the judciciary.

No longer. I do expect the lawyers love it however.

Mitch H. said...

California is a barratry law state. How many of the 'lawyers' involved in this travesty have strikes against them? Because this sure as hell qualifies if any goddamn thing does.

Scott said...

1. It's apparent that PETA arbitrarily chose the name of the monkey. One can assume that if they had chose the name "Mickey Mouse," Walt Disney would come roaring in to smack PETA around for abusing their intellectual property rights and shamelessly expropriating the name without permission in a bid to evoke public sympathy. So I bet that's why they chose to name the monkey "Naruto," which is a sympathetic Japanese cartoon character popular worldwide that is ©1999 by Masashi Kishimoto/SHUEISHA Inc. I bet PETA is hoping that Mr. Kishimoto won't notice; and I hope someone gets in contact with him to let him know.

2. The monkey hasn't hired PETA. Why does PETA have standing to sue? Would one of you lawyer types explain this to us common folk?

3. Someone should suggest to David Slater that he set up a GoFundMe account to collect donations to pay for transportation and lawyers. If he did, I for one would donate $50 immediately. PETA's lawfare attack on Slater's interests is an assault on common decency. That it got to the Ninth Circuit is an obscenity.

gregq said...

"It's sad if the loss of control of this popular photograph has derailed Slater's career."

I don't think he had much of a career if his only "hit" was because of something he had nothing to do with.

It's sad he couldn't leverage this into a career. But IMAO, that was his failure. He got a random shot of good luck, and couldn't / didn't do anything with it. (See "Dan" of "Dan's Bake Sale", for another example of someone who was positively "struck by lightning", and didn't make anything out of it)

Ann Althouse said...

"The monkey hasn't hired PETA. Why does PETA have standing to sue? Would one of you lawyer types explain this to us common folk?"

I took down my previous attempt to answer that. I'll just say PETA is the party to the lawsuit, and they aren't representing the monkey, but they are relying on his legal right, so it seems as though they'd have to meet the requirements of "third party standing." But those requirements are about why you'd let somebody assert someone else's legal rights instead of waiting to allow the person with the legal right to sue. The monkey is never going to sue on his own, which seems like it might be a reason to approve of third party standing, but the monkey has no legal right to sue. How can that be if he might have a copyright? That's all about having a right to sue. I'm guessing this is the conundrum the 9th Circuit was talking about.

(PETA would also need to have standing in the sense of having its own injury to be redressed, and I assume that has to do with its members going to Indonesia and observing and enjoying these particular monkeys. How the photographer's appropriation of the photograph makes a difference to the ability to enjoy the monkeys... that's another question. You'd have to argue, I would think, that photographer getting monkeys to take selfies is impinging on the monkeys, and if the monkeys own the copyright, there will be fewer photographers trying to do photography this way, and that will provide a better monkey-watching experience for the members of PETA.

Ann Althouse said...

I think the transcript will be available at the 9th Circuit within the next 24 hours. I'll read it and see how close I am to guessing what the argument is.

I kind of started to convince myself that PETA has standing, even though I don't think the monkey owns the copyright. I think Slater's setting up the camera to result in a picture is what led to the picture, not the monkey's happening to push the button. The monkey didn't frame the shot or decide when to push the button based on the expression he was making. That was happenstance and no more relevant to the making of a picture than if a rock had fallen on the button.

But I can see how giving the monkey the copyright would work to lessen the number of rigged up cameras in monkey habitats, and PETA's personal interest here is in their own enjoyment of the monkeys.

Michelle Dulak Thomson said...

You'd have to argue, I would think, that photographer getting monkeys to take selfies is impinging on the monkeys, and if the monkeys own the copyright, there will be fewer photographers trying to do photography this way, and that will provide a better monkey-watching experience for the members of PETA.

Well, yes, except that essentially no one in PETA (or anywhere else) knew that these particular monkeys existed at all until the photograph was widely circulated, yes?

n.n said...

PETA represents the baby... monkeys of the world. This may be positive progress. A dysfunctional convergence forced by irreconcilable positions is inevitable and may be better happening sooner than later.

Scott said...

"PETA would also need to have standing in the sense of having its own injury to be redressed, and I assume that has to do with its members going to Indonesia and observing and enjoying these particular monkeys. ... "

I don't know if it meets the legal definition of "frivolous," but as I understand the word as a mere mortal, it certainly does.

David Slater's brilliance brought us these wonderful photos; and PETA is punishing him for it. It's brutally depressing that some nutjob organization in Norfolk Virginia that seems to specialize in soaking up the estates of rich old cat ladies should be bullying Slater out of his intellectual property rights by pursuing a tenuous lawsuit in part for publicity. It's lawfare, and it sucks.

Scott said...

"The monkey didn't frame the shot or decide when to push the button based on the expression he was making. That was happenstance and no more relevant to the making of a picture than if a rock had fallen on the button."

David Slater devised the process by which the photographs in question were created; and he owns the work product as intellectual property. Nature photographers do what he did all the time -- set up the camera and let it be triggered by something in the environment, such as an animal. Why should it be relevant that the animal is a primate instead of an animal of a different order?

That Slater should be singled out by PETA as a lawfare target is a gruesome injustice.

Sigivald said...

Why wasn't this case immediately dismissed with prejudice?

Scott said...

To the lawyers: Can Masashi Kishimoto/SHUEISHA Inc. petition the Ninth Circuit to have PETA stop referring to the monkey as "Naruto" in court documents? Has this kind of thing been done before?

Scott said...

"But I can see how giving the monkey the copyright would work to lessen the number of rigged up cameras in monkey habitats, and PETA's personal interest here is in their own enjoyment of the monkeys."

Then PETA should press their case in the Indonesian courts instead.

Or maybe you're saying that punishing monkey photographers has an effect similar to banning child pornography (which in theory removes the motive for engaging in child sexual abuse), and that's why PETA is doing it. So is law being created without a statute being written? I know there are laws that prohibit images of crows and other migratory birds from being used in advertising. Maybe they could add Indonesian non-human primates. Or something.

Quaestor said...

The only party harmed by this whole affair is David Slater, who has been targeted for malicious mischief by an organization of insane trust fund babies.

Why isn't lawfare a tort?

Scott said...

"Insane trust fund babies" sounds like the name of a band. >:o)

paulmichiel said...
This comment has been removed by the author.
paulmichiel said...

Has anyone asked the court to impose sanctions on PETA's lawyers under FRCP 11, for filing frivolous pleadings? That would seem to be appropriate here.

Darrell said...

Maybe PETA should tackle human baby ultrasound ownership next. Or does their left-wing bent get in the way?

gregq said...

From Wikipedia:

During a hearing in January 2016, US District Judge William Orrick III said that the copyright law does not extend its protection to animals.[1][18] Orrick dismissed the case on January 28.[20][21] On March 20, PETA filed a notice of appeal to the Ninth Circuit Court of Appeals.[22] On July 12, 2017 the court held an oral argument on the matter in San Francisco.[23]

Yes, PETA should be sanctioned for bring this suit. No, Slater was not illegitmately harmed by hte ruling that he doesn't get teh copyright for pictures taken by monkeys

Lem said...

Monkey Business is serious business. If you don't believe me, ask Gary Hart.

Jon Ericson said...

I saw Insane Trust Fund Babies open for Insane Clown Posse at the Agora in '75.

The Godfather said...

We're talking about the 9th Circuit, right? I think PETA's chances are pretty good.

Josephbleau said...

Jack, Heinlien found for the plaintiff, but in a true Solomon like decision the court should award the monkey the copyright but require that she pay the photographer a stiff fee for equipment rental.

tim maguire said...

If he set up the animal selfie, he'd have an argument that he owns the copyright. But that's not the story. At least so far as I know.

How PETA manages to get standing to argue Neruda's interests is beyond me. Can I have standing? Can I represent Neruta against PETA for malpractice because they're crappy legal representatives?

Kirk Parker said...

"Why wasn't this case immediately dismissed with prejudice?"


With prejudice AND grapeshot.