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Intellectual Property

Under all the monkey business are serious legal issues

The fight over the ownership of a monkey selfie could soon be resolved as the parties pursue an out-of-court settlement, says Toronto business lawyer Bill Northcote.

“That could leave some of the legal issues unresolved, but to most copyright lawyers, even without litigation, this was a settled point,” says Northcote, chair of Shibley Righton LLP’s business law group.

“The trial court already decided that copyright cannot be owned by an animal,” he tells AdvocateDaily.com. “That decision will be persuasive, although not binding, on another trial court hearing.”

But if the appeal court had heard the case to completion, the decision would be binding on other American trial courts and would be persuasive in some other jurisdictions. Northcote suspects PETA (People for the Ethical Treatment of Animals) was afraid it wouldn’t win.

“Presumably that’s the reason PETA wants to settle because they figure they don’t have any chance of being successful. So better to fight another day,” he says.

The parties recently asked the judge to hold off deciding the case while they pursue settlement discussions.

“Given the current progress of settlement discussions, the parties are optimistic that they will be able to reach an agreement that will resolve all claims in this matter,” the parties said in a joint motion to stay the appeal, according to the World Intellectual Property Review (WIPR).

Under all the monkey business and the clever headline possibilities like “Monkey see, monkey sue,” is a real legal conundrum.

The case centres around a “selfie” taken in 2011 by a Macaque monkey in Indonesia using the camera of British photographer David Slater.

According to an article in The Telegraph, Slater was taking pictures of a group of monkeys when one of them grabbed his camera and snapped off hundreds of pictures. While most were out of focus, the animal did manage to capture some incredible images in the process, one of which is the infamous monkey's self-portrait.

The photo then went viral, and when Slater saw the picture on Wikipedia in its royalty-free database, he asked the website to stop using it without his permission.

Wikipedia refused, stating that the picture cannot be copyrighted as Slater did not take the picture.

This led to a copyright infringement lawsuit in September 2015 by PETA, which claimed proceeds from the photo should be given to preserve the monkey’s habitat.

In response, reported WIPR, Slater filed a motion to dismiss the case, arguing that American law did not give animals the right to assert copyright ownership.

At trial, a California judge rejected PETA’s claim and stated that any copyright ownership by animals is a matter for Congress, not the courts. PETA appealed and the court recently heard arguments from both sides.

PETA’s attorneys argued the copyright ownership should belong to the monkey, not Slater, while the photographer’s defence asked if PETA has a close enough relationship to the monkey named Naruto to represent it in court, WIPR reports.

“From a lawyer’s perspective,” says Northcote, “the initial case was interesting because it reinforced the concept that there could be works which have no author for copyright purposes.”

It was “helpful to have the case, but the results weren’t surprising,” he says, adding it’s unlikely the courts would ever extend copyright ownership to animals.

“It would lead to all kinds of bizarre results. For example, if the monkey did own the copyright, how does it administer it? Implicit in copyright ownership is the right to license others to use it. Well, how can a monkey agree to that?” Northcote wonders.

“And if you extend it, which is what lawyers like to do, suppose you’re in a forest and a bird sings and you record it. The act of recording it doesn’t create the copyright because there’s no creative effort expended in the creation of it. So, does that mean the bird can copyright its song? And does that mean that other birds have the right to sue?”

Northcote says settling the case is an appropriate resolution on two fronts.

“First, why would PETA have the right to represent this monkey? And second, an animal cannot assert copyright ownership,” he says.

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