No Monkey Business Here: The Monkey Selfie Copyright Case Is Over — for Now

The Washington Post covers CEI’s amicus brief in Naruto v. Slater.

The G.M.S.C. — the Great Monkey Selfie Controversy — has, perhaps, come to an end.

Everyone, I suspect, knows the background by now (if not, details can be found here and here). David Slater, a professional wildlife photographer, left his camera on a tripod at his campsite on the Indonesian island of Sulawesi, where he was working at the time. A troop of macaque monkeys entered the campsite and began, in typical monkey fashion, to toss things about. One of them grabbed hold of Slater’s camera and started pressing buttons. Slater later retrieved the camera and discovered that there were a bunch of photos on it that had been snapped by the monkey, including the now-world-famous — and truly spectacular — monkey selfie.

In 2015, PETA — People for the Ethical Treatment of Animals — filed suit against Slater in U.S. District Court for the Northern District of California asserting (a) that the monkey (whose name, at least according to PETA, was “Naruto”), as the photographer, was the owner of the copyright in the photo, (b) that Slater had infringed Naruto’s copyright by publishing a book containing this and other “monkey selfies and (c) seeking to be named a guardian ad litem of the monkey’s rights in the photo. Judge William H. Orrick dismissed the claim on the grounds that the Copyright Act does not authorize vesting copyright ownership in nonhumans, and PETA appealed to the U.S. Court of Appeals for the 9th Circuit.

Last week, PETA and Slater announced a settlement: PETA agreed to drop its appeal, and Slater agreed to pay 25 percent of his future royalties from the photo to organizations involved in habitat-protection efforts in Sulawesi. An eminently reasonable win-win resolution of the matter, to be sure.

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And second: The parties’ settlement motion (which was kindly sent to me by PETA’s media department) asks the Ninth Circuit not only to dismiss PETA’s appeal, but to vacate the earlier judgment by the district court. This (known in the trade as “vacatur”) has the effect of wiping out the record of what had happened in the district court, in effect treating all of that, including Orrick’s opinion, as if it had never occurred.

Vacatur is a common, but odious, practice in the federal courts. Orrick’s decision is not private property that can be disposed of at the whim of the parties; it belongs to the public, created by a public employee at public expense, concerning the interpretation of federal law, applicable across the entire country (though Orrick’s decision, of course, is only binding precedent within the confines of the Northern District of California [see Update below]). Why should we throw out his efforts just because the parties to the lawsuit, pursuing their own private interests, would like that to happen? The Competitive Enterprise Institute has submitted an amicus brief to the 9th Circuit (available here) arguing against the grant of vacatur here, and I very much hope the court takes the suggestion.

Read the full article at The Washington Post.