By Kevin Smith

It has been a while since we have posted to this site, and I want to catch up by sharing some thoughts about a few odd or disturbing developments from the past month or so.

Let’s start with a recent folly, the “settlement” in the infamous “Monkey Selfie” case.  The New York Times proclaims the settlement proposed on Monday as “a victory of sorts” for the monkey and his friends.  The “friends,” of course are PETA, the People for the Ethical Treatment of Animals, who brought the case as Naruto’s “next friend,” trying to establish that the monkey, who they named Naruto, owned the copyright in the picture he apparently snapped.  It is not at all clear that PETA even knows which monkey it is representing, since in court papers they identify Naruto as a six-year old male, but the original photographer whose copyright claim PETA is disputing, David Slater himself identified the photogenic macaque as a female.

In any case, this settlement is no victory; to me, it looks like PETA is frantically trying to stop digging a hole they have gotten themselves into.

In the settlement, PETA agrees to drop its appeal of the decision from the District Court, which held that a monkey can not hold a copyright, and Slater agrees to give 25% of the licensing royalties he might collect for the photo to a charity to benefit Indonesian macaques.  It is unclear how much money that could be, since the pictures have always been freely available all over the internet, and Slater has complained that he is nearly bankrupt from litigation costs.  But the real point of the settlement, in my opinion, is its request that the Court of Appeals vacate the decision in the lower court.  Here it is PETA’s own face that they are trying to save, not Naruto’s.  The lower court not only said that a monkey cannot hold rights, which would be a damaging precedent for PETA’s on-going publicity-oriented litigation campaign, but also cast doubt on PETA’s standing to act as next friend for a group of animals.  If that decision, as clearly correct as it is, is allowed to stand, it would be a serious obstacle to PETA’s fundamental strategy.  So PETA is asking the Ninth Circuit to heal their own self-inflicted wound.

The tragedy here is that PETA will accomplish little to benefit macaque monkeys with this motion and will do real damage to sensible copyright law, all to save themselves from the consequences of their own self-serving effort to generate attention.  The lower court was exactly right; copyright is a creation of human law designed to have a specific effect within the context of human economic systems.  It is silly and arrogant to assert that an animal can hold a copyright.  Even more worrying, however, is that by approving the settlement and vacating the lower court’s decision, the Ninth Circuit will perpetuate the myth that every thing must be owned by someone.  The loser here is the public domain, which means all of us, especially because recognizing Slater’s licensing income further clouds the status of the photos, which ought to be clearly held to be PD.  All because PETA brought a foolish lawsuit and now is trying to avoid the predictable outcome of their own folly.

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

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