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The monkey selfie lawsuit lives

The monkey selfie lawsuit lives


PETA and the photographer settled last year, but the Ninth Circuit will be issuing a ruling anyway

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A self-portrait of Naruto(?), public domain (maybe?)

Just when you thought you wouldn’t hear about the monkey selfie ever again, the legal saga lives once more. Although the parties — the photographer, a self-publishing book company, and PETA, on behalf of the selfie-taking monkey — reached a settlement in September of last year, the Ninth Circuit is now refusing to dismiss the case. This means the court will be coming out with an official appellate decision about the monkey selfie.

Back in 2011, nature photographer David Slater left some camera equipment out in the Indonesian rainforest. By Slater’s account, an enterprising Sulawesi crested macaque — since identified by anthropologist Antje Engelhardt of the Macaca Nigra Project as the monkey known as “Naruto” — picked up a camera and took a selfie (pictured above).

The photo went viral and was eventually uploaded to the Wikimedia Commons as a public domain image — the reasoning being that the monkey was the author of the photo and because monkeys aren’t legally capable of being authors under copyright law, the photo cannot be copyrighted. Slater, the photographer, objected, but Wikimedia didn’t stand down.

Are monkeys even allowed to sue?

Just when the media furor around the (incredibly entertaining) disagreement died down, PETA sued Slater and a self-publishing company he used to publish a book of his photography for infringing Naruto’s copyright.

Can, like, PETA actually do that? you might ask. It’s unclear! Under Ninth Circuit precedent — a case called Cetacean v. Bush where a “self-appointed attorney for all of the world’s whales, porpoises, and dolphins” sued over the Navy’s use of sonar — animals do not have standing to sue unless Congress clearly writes it into the statute. By attempting to settle, PETA was likely dodging new case law that would affirm that precedent.

But now all bets are off. The Ninth Circuit points out in its latest order that the court doesn’t have to dismiss a case just because all the parties agree to dismiss it. The order lists a number of reasons not to dismiss the case, including the fact that “Naruto is not a party to the settlement agreement.” How could they leave Naruto out?

From the Ninth Circuit order.
From the Ninth Circuit order.

Was PETA allowed to bring this case? Are monkeys even allowed to sue? Is a monkey an author for the purposes of the Copyright Act of 1976? We very well might find out the answer to any or even all of these questions when the Ninth Circuit comes out with its decision.