As the old saying goes, “with friends like these, who needs enemies?”
Last year, animal activist group People for the Ethical Treatment of Animals (PETA), acting as a purported “next friend” of a Sulawesi crested macaque (named “Naruto”), brought a lawsuit in the Northern District of California against wildlife photographer David Slater and a self-publishing book company over a “selfie” that the macaque had taken when it grabbed wildlife photographer Slater’s camera. PETA had alleged that the monkey, as author and owner of the photograph, had a claim for copyright infringement against defendants. After finding that the monkey had constitutional standing, but no standing under the Copyright Act, the district court dismissed the case. PETA appealed the case to the Ninth Circuit.After oral argument on the appeal, PETA asked the court to dismiss their appeal and to vacate the district court’s adverse judgment, stating that it had settled the claims against Slater (although Naruto was not a party to the settlement). In a surprising move, the Ninth Circuit decided to issue a decision after PETA’s request to dismiss the appeal, calling PETA’s strategy “what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interest”. See Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).
The Ninth Circuit panel criticized PETA for claiming it was a “next friend” of the monkey (as PETA failed to allege any facts to support the requisite significant relationship between a “next friend” and a real party in interest).
The Court called out PETA for “seem[ing] to employ Naruto as an unwitting pawn in its ideological goals.”
The Court recognized that while Congress has authorized “next friend” lawsuits on behalf of habeas petitioners and “minor or incompetent persons”, it declined to recognize “next friend” lawsuits on behalf of animals (absent express authorization from Congress).
While the Court did not recognize PETA as a “next friend” of Naruto, it considered whether Naruto had standing to sue under the copyright laws on another jurisdictional basis – i.e. in his own right. The concept of an animal suing in its own right had been previously established by a Ninth Circuit panel in Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004)—a case involving “all of the world’s whales, porpoises and dolphins” challenge to the government’s use of Navy sonar. While the Naruto panel reluctantly found that it was bound by Cetacean Community (even where it determined that a decision was unwise or incorrect) and that it could provide a basis for a non-human animal’s constitutional standing, it urged the Ninth Circuit to reexamine that case.
The Court nevertheless found that the monkey did not have statutory standing to sue. Essentially, if Congress intended for non-human animals to sue under the Copyright Act, it needed to plainly state this.
“Because animals do not possess cognizable interests, it stands to reason that they cannot bring suit in federal court in their own names to protect such interests unless Congress determines otherwise.”
While it may come as no surprise that the Ninth Circuit refused to extend statutory standing under the Copyright Act to a monkey, the decision is significant for its overt chiding of PETA’s motives in bringing the case. To add insult to injury, the Court ordered PETA to pay Slater and Wildlife Personalities’ attorneys’ fees and costs on appeal. To date, the appropriate amount of attorneys’ fees has yet to be determined by the district court.
This decision may well be pivotal in reducing baseless litigation brought by animal activists that clog the courts, waste precious judicial resources, and serve to advance activist groups’ fundraising and ideological goals.
The impact of Naruto v. Slater may ultimately extend beyond ownership of Naruto’s selfie. Last month, the parties were required to file supplemental briefs addressing whether the court should entertain rehearing en banc (by all judges of a court rather than a selected panel), either to address whether this decision never should have issued in light of PETA’s request to dismiss the appeal or whether the Ninth Circuit should overrule the prior decision in Cetacean Community.