About a year ago, I wrote a blog regarding copyright ownership when an animal, in this case a macaque monkey in Indonesia, took a selfie in 2011. Three groups were battling – PETA, for the monkey who snapped the selfie; the photographer, who set up the camera; and groups like Wikipedia, who state the photo is public domain.

To follow up, in January, 2016, a U.S. Court ruled that the monkey cannot own the copyright to the photographs, 2016 WL 362231, US District Court, N.D. California, Naruto et. al., Plaintiffs v David John Slater, et al., Defendants, and defendants’ motion to dismiss was granted. The judge basically stated that if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could and should have said so plainly. The court could not find any case to include an animal as an author of a piece of work. The judge also took into consideration the Copyright Office who state that animals are not entitled to copyright protection. In the Compendium of U.S. Copyright Office Practices, issued in December, 2014, the office will not register an original work of authorship produced by nature, animals, or plants.

PETA wanted the proceeds from the photo taken by Naruto, the monkey, to go to Naruto and his chums. Their attorney stated Naruto “purposely pushed the shutter release multiple times and understood the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.”

The photographer’s, attorney stated the photographer set up the photos by building a trustful friendly relationship with the monkeys and set up the camera he’d left in the reserve.

But, it’s not done yet!

In July, 2016 PETA filed an appeal to the United States Court of Appeals for the Ninth Circuit. While the US Copyright office states it will not register “works produced by nature, animals, or plants” PETA is claiming that nothing in the Copyright Act “limits it application to human authors and the Copyright Act protects original works of authorship not works of human authors.”

Agustin Fuentes, an expert on human and non-human primate interactions, filed an amicus brief in support of Naruto’s appeal. It was stated that the monkey’s actions may not have been random. Fuentes states that “macaques like Naruto, manipulate objects for a desired effect, therefore, within the capacity of Naruto to manipulate the camera and snap the photo of himself.”  Fuentes also states that courts have used scientific evidence in determining how to apply statutory issues. One example is the US Supreme Court ruling in Roper v Simmons, that used scientific evidence to determine juveniles and intellectually disabled, are excluded from capital punishment.

It’s in the hands of the Ninth Circuit. Will it end there or possibly an appeal to the Supreme Court?