By Hon. Judith K. Fitzgerald (Ret).
Tucker Arensberg, P.C.
In case you are curious about the extent of animal rights under
the law, take a look at this new decision in the Ninth Circuit, Naruto v. Slater, 2018 WL 1902414 (9th
Cir. Apr. 23, 2018). Naruto, an
Indonesian macaque, picked up a camera that was left unattended in a reserve by
David Slater, a photographer, and took some selfies back in 2011. The pictures were apparently worthy of
publication, so Mr. Slater published them in 2014. The monkey sued. Well, actually, the People for the Ethical
Treatment of Animals, Inc. (“PETA”) sued as Naruto’s Next Friend, for copyright
infringement. The case worked its way to
the Court of Appeals for the Ninth Circuit, where the court framed the issue
this way:We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court's precedent requires us to conclude that the monkey's claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act. We therefore affirm the judgment of the district court.
Naruto v. Slater, No. 16-15469, 2018 WL 1902414 (9th Cir. Apr. 23, 2018)
(footnote omitted).
The defendants in
the lawsuit moved to dismiss on the grounds that the complaint did not state
facts sufficient to establish standing under Article III or statutory standing
under the Copyright Act. The district
court granted the motion, ruling that Naruto failed to establish statutory standing under the Copyright
Act. The appeal followed.
Expressing grave
doubt that PETA could serve as next friend to a monkey because PETA could not
establish that it had any relationship with Naruto that is any more significant
than its relationship with any other animal, the court nonetheless relied on
prior precedent and considered the merits. Citing to Cetacean Cmty. v.
Bush, 386 F.3d 1169 (9th Cir. 2004), the
court found that Naruto's lack of a next friend did not destroy his standing to
sue, as having a “case or controversy” under Article III of the Constitution. The
court noted that Cetacean did not
rely on the fact that the statutes at issue in that case referred to “persons”
or “individuals.”
Instead, the court crafted a simple
rule of statutory interpretation: if an Act of Congress plainly states that
animals have statutory standing, then animals have statutory standing. If the
statute does not so plainly state, then animals do not have statutory standing.
The Copyright Act does not expressly authorize animals to file copyright infringement
suits under the statute. Therefore, based on this court's precedent in Cetacean, Naruto lacks statutory
standing to sue under the Copyright Act.
Naruto v. Slater, supra, 2018 WL
1902414 at *6 (footnotes omitted).
The court
detailed an analysis of several provisions of the Copyright Act to explain its
ruling, concluding:
The terms “children,” “grandchildren,”
“legitimate,” “widow,” and “widower” all imply humanity and necessarily exclude
animals that do not marry and do not have heirs entitled to property by law.
Based on this court's decision in Cetacean
and the text of the Copyright Act as a whole, the district court did not err in
concluding that Naruto—and, more broadly, animals other than humans—lack
statutory standing to sue under the Copyright Act.
Id. at *7 (9th Cir. Apr. 23, 2018).
In addition to
ruling against PETA, the court remanded the case for a determination of appellate
stage attorneys’ fees and costs that would be owed to the appellees. So, Naruto got no copyright protection but his
next friend owes attorneys’ fees.
Regardless of how that action turns out, I, for one, am happy to know
that those favorite photos of my children’s cats and dogs that I receive on a
regular basis will not enable Jasper or Ella (the cats) or Yoho or Sadie (the
dogs) to collect damages for copyright infringement.[1]
[1] An opinion concurring in the conclusion that the case
had to be dismissed examined, at length, the jurisdictional predicates
implicated in next-friend cases. Concluding
that next-friend standing is jurisdictional, the concurrence complained, inter alia, that the Majority missed the
point in relying on Cetacean:
Not only did Cetacean
not address animal next-friend standing, but no court has ever done so. See Mount Graham Red Squirrel v. Madigan,
954 F.2d 1441, 1448 n.13 (9th Cir. 1992) (“No party has mentioned and,
notwithstanding our normal rules, we do not consider, the standing of the
first-named party [Mount Graham Red Squirrel] to bring this action.”); Palila v. Hawaii Dep't of Land & Nat.
Res., 852 F.2d 1106, 1107 (9th Cir. 1988) (“As an endangered species ...,
the bird ... also has legal status and wings its way into federal court as a
plaintiff in its own right.” (emphasis added) ), abrogated in part by, Cetacean, 386 F.3d at 1173 (9th Cir. 2004) (“Palila IV's statements [regarding
standing] are nonbinding dicta.”); Citizens
to End Animal Suffering & Exploitation, Inc. v. New England Aquarium,
836 F.Supp. 45, 49–50 (D. Mass. 1993) (finding named dolphin, Kama, lacked
standing because “[t]he MMPA does not authorize suits brought by animals,” and
addressing the fact that Rule 17(b) would hold that animals lack “capacity” to
be sued because they are property of their owners, concluding that “the MMPA
and the operation of F.R.Civ.P. 17(b) indicate that Kama the dolphin lacks
standing to maintain this action as a matter of law,” and allowing “the removal
of Kama's name from the caption of [the] case”); Hawaiian Crow ('Alala) v. Lujan, 906 F.Supp. 549, 551–52 (D. Haw.
1991) (finding that in Northern Spotted
Owl, Palila, and Mount Graham Red
Squirrel, no party had challenged the named standing of the animal itself
and the case had other parties in the litigation and ultimately concluding that
“the cited cases do not directly support plaintiffs' position here” and
concluding that “the plain language of Rule 17(c) and section 1540(g) [did] not
authorize the 'Alala to sue” because it was “clearly neither a ‘person’ as
defined in section 1532(13), nor an infant or incompetent person under Rule 17(c)”);
Northern Spotted Owl v. Lujan, 758
F.Supp. 621 (W.D. Wash. 1991) (failing to address standing for named
first-party); Northern Spotted Owl v.
Hodel, 716 F.Supp. 479 (W.D. Wash. 1988) (failing to address standing for
named first-party).
Naruto v. Slater, No. 16-15469, 2018 WL 1902414, at *14 (9th Cir. Apr. 23, 2018).
Clearly, there is a
sound basis to conclude that this appeal wasn’t just “monkey business.” The opinion is worth the read.
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