The Ninth Circuit is heading back to the zoo.

Seven months after a nature photographer and People for the Ethical Treatment of Animals settled the famed monkey selfie copyright case, the appellate court has said not so fast. It will be issuing an opinion after all, and probably shortly.

For reasons including its wariness of “abetting 'strategic behavior' on the part of institutional litigants,” the U.S. Court of Appeals for the Ninth Circuit denied the parties' joint motion last fall to dismiss the case and vacate a lower court order from U.S. District Judge William Orrick III of the Northern District of California.

Naruto v. Slater made international headlines last year when PETA challenged photographer David Slater's copyright claim on portraits of a macaque shot in Indonesia. Though the parties dispute exactly how the photos were taken, PETA alleged that Slater had set up his camera and monkey Naruto had deliberately pressed the shutter multiple times after becoming aware of his own reflection in the lens.

PETA and a primatologist who said she'd monitored the macaques for years brought suit as Naruto's next friends, saying the monkey should hold the copyright, not Slater. Slater and book publisher Blurb argued that the Copyright Act does not contemplate awards to non-human authors.

After the primatologist dropped out on appeal, and oral arguments at the Ninth Circuit seemed to favor Slater and Blurb, the parties struck a settlement deal in which Slater reportedly agreed to donate 25 percent of future revenue from the selfies to charities that protect Naruto's habitat.

Competitive Enterprise Institute, with counsel from Theodore Frank, opposed the parties' motion to dismiss the case. Even if the Ninth Circuit chose not to rule, it should leave Orrick's district court order in favor of Slater in place, Frank argued. That would “deter PETA and other groups from using the Copyright Act as an ideological weapon to generate publicity and impose legal costs on innocent copyright holders,” Frank wrote at the time.

The Ninth Circuit never ruled, until now. It noted in an unsigned five-page order that PETA has brought multiple actions asserting that animals have standing. “As one of our colleagues once warned in a similar context, 'courts must be particularly wary of abetting 'strategic behavior' on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case,” the court stated.

Berkeley solo Andrew Dhuey said he had not yet discussed the order with his client, Slater. But, he said, “I expect the court will issue a decision on the merits very shortly.”

PETA general counsel Jeff Kerr said in an emailed statement that the joint request to dismiss following settlement was “standard practice.”

“We will await further action by the court—but meanwhile, Naruto and his macaque community in Indonesia have benefited in the monkey-selfie case,” he said. “The owner of the camera that Naruto used to take the photographs agreed to donate 25 percent of his gross proceeds from the pictures to charities working to protect monkeys from being killed for bush meat and from human encroachment.”

The Ninth Circuit panel handling the case includes Circuit Judges Carlos Bea and N. Randy Smith and U.S. District Judge Eduardo Robreno of the Eastern District of Pennsylvania, sitting by designation.

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