by Paul Alan Levy
Last year, oral argument was held in the Ninth Circuit on the appeal filed by People for the Ethical Treatment of Animals, purportedly representing a monkey suing to assert its copyright in a photo that it supposedly deliberately took of itself by causing the operation of a camera. The trial court had rejected PETA’s claims, holding that an animal cannot own a copyright, and oral argument was a disaster for PETA. Not long afterward, PETA and appellee David Slater told the Ninth Circuit that they had settled the case and that the appeal was to be dismissed on the condition that the judgment below be vacated.
Instead of suing any of the many sites that had posted the photograph in the course of ridiculing the copyright claims on all sides, PETA sued Slater, the other claimaint to the copyright, perhaps assuming that a mutually agreeable settlement could be reached to the disadvantage of third parties. Slater claims to own the copyright in the photo on the theory that he deliberately arranged a camera in a manner that induced a monkey to take actions that caused the camera to take photographs. (Even assuming that a valid copyright claim could be made, there is good reason question whether the monkey in whose name the suit was brought is, in fact, the specific monkey whose actions caused the photographs to be taken.) Conveniently, the “settlement” purported to recognize Slater’s ownership of the copyright, thus fortifying his campaign to prevent others from using the photo, while committing Slater to make payments desired by PETA. The settlement thus served the interests of both sides, but it was a potential loss for the public domain.
In a decision issued today, the Ninth Circuit denied the motion to dismiss and vacate, indicating that it perceived the motion as a strategic move to take off the books a decision that the plaintiff didn’t like, as well as preventing the court from issuing a ruling on an important question of law. The court ruled a full seven months after the settlement and motion to vacate was filed, so I have to assume that, during this time, the court was preparing its ruling and that issuance of an opinion is imminent.