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The Monkey Selfie Lawsuit Will Never, Ever Die: Appeals Court Judge Wants A Do Over


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Last fall, I joked (no, really, it was a joke!) that the monkey selfie saga "will never, ever be over." I stand by that prediction, even if Cathy Gellis wrote here last month with what she falsely believed was "the last update from the monkey selfie case". She wrote that because the 9th Circuit -- after rejecting a problematic settlement between PETA and photographer David Slater because Naruto, the apparent monkey in the middle had clearly not approved of any settlement -- had clearly and decisively rejected PETA's ridiculous argument. The court found no reason to believe that PETA (being a "next friend" of the monkey) should get the monkey's copyright for taking the selfie. The court said -- as we've said from the very beginning -- that monkeys don't get copyright.






Several provisions of the Copyright Act also persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). For example, the “children” of an “author,” “whether legitimate or not,” can inherit certain rights under the Copyright Act. See 17 U.S.C. §§ 101, 201, 203, 304. Also, an author’s “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.” Id. § 203(a)(2)(A). The terms “children,” “grandchildren,” “legitimate,” “widow,” and “widower” all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law. Based on this court’s decision in Cetacean and the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.


And thus, the case was over. Done. Over. Complete. Closed. But, no. This is the monkey selfie case and it will never, ever end.


On Friday, the case came back to life. The court declared that another judge in the 9th Circuit is requesting that the court rehear the case en banc. This means that rather than just a typical 3 judge panel, a 9 judge panel would rehear the case (in other circuits, en banc often means all the judges, but the 9th is so big, they just go with 9). Often one of the parties in a case will ask for a case to be reheard en banc. In this case, it was a judge. This happens, though rarely. This doesn't mean the case will get heard again. There needs to be a vote. But, in the meantime, the court is asking the various parties to file briefs on whether or not the case should be reheard.


We're unlikely to find out, but it's worrisome that there's a judge who thinks the case should be reheard, as it certainly suggests a judge who believes animals can get copyright. Indeed, it suggests that there may be a judge in the 9th Circuit who believes the important Cetacean case, which was crucial to this ruling, and which says that without it being expressly noted by Congress, animals do not get the right to sue in court.

And while that may not seem like a big deal it could be a very big deal -- and not just for the likes of PETA deciding to go around suing everyone on behalf of animals, but because a change in such a case might impact a totally different, but increasingly important area of law: whether works created by artificial intelligence will get covered by copyright law.


Hopefully, the 9th circuit is not taken in by this one judge and decides not to rehear the case en banc - or if, monkeys forbid, that it does decide to continue this monkey business -- it upholds the original ruling by the appeals court. Either way, it feels like this case is cursed. The curse of the monkey selfie.



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