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A new monkey may have to bring a test case to get a definitive answer on whether animals can be “authors” under copyright law. Naruto, the crested macaque from Indonesia, is talking settlement.

People for the Ethical Treatment of Animals, which has been advocating on behalf of the monkey in federal court, on Friday joined photographer David Slater and publisher Blurb in asking the U.S. Court of Appeals for the Ninth Circuit to hold off deciding the celebrated monkey selfie 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 Friday.

Slater and Blurb persuaded U.S. District Judge William Orrick of the Northern District of California to reject PETA’s suit last year, and a Ninth Circuit panel sounded no more receptive during a July 12 oral argument. Slater, the photographer who claims the copyright, and his attorney Andrew Dhuey have been vocal about plans to seek attorney fees if they prevail.

Slater, who lives in Australia, has described himself as broke despite the widespread reproduction of the monkey selfie photographs. He announced on his website last month that he would begin donating 10 percent of sales to a monkey conservation project in Sulawesi, Indonesia—the home of the macaques Slater photographed.

That puts him partly in alignment with PETA, which has said that if it won the case it would donate all proceeds from the monkey selfies for the benefit of “Naruto, his family, and his community, including the preservation of their habitat.” Two weeks ago Slater and PETA made a joint appearance on the BBC to promote animal rights.

Dhuey told CNN earlier this week that it’s unfortunate Slater and PETA have been fighting when they share the same dedication to the macaques. “He would much prefer to work with PETA toward their common goal,” Dhuey said.

Slater set out to take photos of the macaques in 2011. The parties dispute exactly how the photographs were taken, but PETA alleges that after Slater set up his camera, Naruto deliberately pressed the shutter multiple times when he became aware of his own reflection in the lens. PETA and Dr. Antje Engelhardt, a primatologist who said she’d monitored the macaques for years, brought suit as Naruto’s next friends, saying the monkey should benefit from the copyright.

PETA is represented by Irell & Manella partner David Schwarz. Cooley special counsel Angela Dunning represents Blurb.

Orrick ruled last year that, under Ninth Circuit case law, animals do not have legal standing to bring lawsuits unless expressly provided for by statute. The Copyright Act makes no mention of animals, he wrote, and the Copyright Office has formally stated that “to qualify as a work of ‘authorship,’ a work must be created by a human being.”

Engelhardt dropped out of the case on appeal, and the Ninth Circuit judges sharply questioned at the July hearing whether PETA can establish next friend status on its own—and whether a monkey can legally hold a copyright.

Scott Graham writes about intellectual property and the U.S. Court of Appeals for the Federal Circuit. Contact him at sgraham@alm.com. On Twitter: @ScottKGraham


Scott Graham

Scott Graham focuses on intellectual property and the U.S. Court of Appeals for the Federal Circuit. He writes ALM's Skilled in the Art IP briefing. Contact him at sgraham@alm.com.

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