What do whales, dolphins and porpoises have in common with a monkey of the Celebes crested macaques-type from Northern Sulawesi (Indonesia)? And how does that in turn connect with the concept of “next friend” in the context of “standing”? In fact, what is “standing”? All of these are brought together in a tale that starts in Sulawesi with a monkey named Naruto and a photographer named David John Slater, who contrived to leave his photographic equipment unattended in the hope monkeys would activate it. Seeing his opportunity, Naruto approached and took several selfies.
Slater and Wildlife Personalities Ltd. (Wildlife”) published the selfies, and the rest is, as they say, history. The selfies went viral on the Internet. Slater and Wildlife claimed ownership of copyrights in the selfies. Naruto brought suit claiming copyrights as the author of the selfies. After all, it was undeniable, and Slater admitted, that Naruto pushed the button to take the selfies. As a result of that button-pushing act, was Naruto the “author and owner of the copyrights”? Of course, Naruto needed some help to bring this suit, and People for the Ethical Treatment of Animals (“PETA”) stepped in to provide that assistance in filing the complaint in the Federal District Court for the Northern District of California.
As a prelude to asserting rights in a suit, the plaintiff must have standing. The district court dismissed the suit for lack of standing, and Naruto through his next friend, PETA, appealed to the Ninth Circuit Court of Appeals. The court analyzed Naruto’s standing, which can be simplified as “a right to bring suit,” under three standards. The first issue on appeal is whether Naruto has standing to bring suit based on the status of PETA as a “next friend.” The next is whether Naruto has standing under Article III of the US Constitution. And the third is whether Naruto has standing under the Copyright Act (“statutory standing”).
As to the first issue, the appellate court found that PETA did not qualify as a next friend. PETA’s next friend status requires (a) that Naruto be unable to litigate his own cause due to mental incapacity, lack of access to court, or some similar disability; and (b) PETA must have a “significant relationship” with Naruto, and be truly dedicated to his best interests. The court found that PETA did not have a significant relationship with Naruto. In so finding, the court quoted Supreme Court precedent: “however worthy and high minded the motives of ‘next friends’ may be, they inevitably run the risk of making the actual party a pawn to be manipulated on a chess board larger than his own case.” Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979). This quote is more clearly understood in light of footnote 3 of the Court’s opinion which details (rather scathingly) that PETA had reached a settlement with Slater to pay a quarter of his earnings from the book to charities that protect the habitat of Naruto and other crested macaques in Indonesia. PETA then tried to withdraw from the appeal to avoid a potential adverse ruling, the Court speculates, that could affect the settlement. Thus, the Court reasoned that Naruto was a pawn in PETA’s larger objective of monkey habitat protection, and PETA’s objective was not Naruto’s interest in copyrights. Accordingly, it ruled that next friend status was unwarranted.
In addition, the Court found that Congress had made no provision for next friend suits on behalf of animals, and it was therefore not inclined to recognize such a right.
The Court’s analysis then turned to the Article III of the US Constitution because Naruto’s lack of next friend standing does not necessarily mean that he does not have a “case in controversy” under Article III. The court already had a prior opinion dealing with appeals by other-than-human species. In 2004, the Court had issued an opinion regarding the rights of cetaceans (whales, dolphins and porpoises) that were being affected by naval sonar. In that opinion, Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), the Court held that Article III of the US Constitution “does not compel the conclusion that a statutorily authorized suit in the name of an animal is ‘not a case or controversy.’” This double-negative does not positively state that animals have rights but implies they might have rights, leaving open under what circumstances. While the Naruto court could not overrule the Cetacean precedent in a three-judge panel, it urged that the precedent be overruled as being in error. In footnote 7 the Court remarks that there is “no other aspect of federal law,” other than Cetacean that has ever found that animals have Article III standing.
Being in a bind as to Article III standing, unable to overrule, yet unable to ignore the Cetacean precedent, the Court retreated to the more specific standing to sue under the Copyright Act. Having already indicated its disavowal of Cetacean, Court proceeded, ironically, to rely on a statement from that very opinion to find no statutory standing:
The court in Cetacean did not rely on the fact that 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.
Court then concluded that since the Copyright Act does not plainly state that animals have standing, they have no standing to bring a copyright-based suit. In other words, Naruto is out of the courthouse.
The Court was also not at all taken with the role of PETA in the litigation, and regarded its role as self-serving, at best. (Those interested in the details should read footnote 3 of Naruto v. David John Slater, Blurb Inc. and Wildlife Personalities, Ltd., slip. op. (9th Cir. April 23, 2018)) So, it awarded attorney fees and costs of the appeal to Slater and Wildlife.
Thus ended the tale of cetaceans, monkeys, monkey selfies, “standing” and copyrights.