Just when you thought you would never hear about the monkey again, the legal saga lives once more. Although the parties – the photographer, a self-publishing book company and PETA, on behalf of the monkey taking selfies – reached an agreement in September of last year, the Ninth Circuit now refuses to dismiss the case. This means that the court will issue an official appeal decision on the monkey selfie.
In 2011, nature photographer David Slater left some camera equipment in the Indonesian jungle. According to the story of Slater, an enterprising macaque with a Sulawesi crest – since the anthropologist Antje Engelhardt of the Macaca Nigra Project identified him as the monkey known as "Naruto" – he took a camera and took a selfie (photo above).
The photo went viral and was finally uploaded to the Wikimedia Commons as a public domain image; The reasoning is that the monkey was the author of the photo and because the monkeys are not legally capable of being authors according to the copyright law, the photo can not be protected by copyright. Slater, the photographer, objected, but Wikimedia did not withdraw.
Just as furious comments from the media about the (incredibly entertaining) disagreement ceased, PETA sued Slater and a self-publishing company that used to publish a book of their photographs for infringing Naruto's copyright.
Can you, like, PETA really do that? you can ask. It is not clear! Under the precedent of the Ninth Circuit – a case called Cetacean v. Bush where a "self-proclaimed lawyer for all the whales, porpoises and dolphins of the world" sued for the use of Navy sonar – the animals have no position to sue unless Congress clearly writes it in the statute. When trying to reach an agreement, it is likely that PETA dodged the new jurisprudence that would affirm that precedent. But now all bets are off.
Was PETA allowed to take this case? Can monkeys even sue? Is a monkey an author for the purposes of the Copyright Act of 1976? We may well find the answer to any or all of these questions when the Ninth Circuit issues its decision.