There was certainly no monkeying around by the 9th circuit when it comes to copyright claims. Despite the parties coming to settlement agreements, the San Francisco based 9th Circuit Court of Appeals ruled in late April 2018 that “Naruto [a crested macaque]—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.” Naruto v. Slater, No. 16-15469, 2018 U.S. App. LEXIS 10129, *13 (9th Cir. Apr. 23, 2018).
The Alleged Monkey Business
In 2011, while in a reserve on the island of Sulawesi, Indonesia, photographer David Slater (“Slater”) left his camera unattended when Naruto, a seven-year old crested macaque residing in the reserve, picked up the camera. I guess monkey see, monkey do, Naruto begun taking pictures, but, of himself.
These selfies were included in a wildlife photo book later published in 2014. Although the book identified Slater and his company, Slater and Wildlife Personalities, Ltd., as copyright holders of the photographs, there is commentary throughout out the book indicating that is was Naruto who captured the selfies.
It was then in 2015 that People for the Ethical Treatment of Animals (“PETA”) and one Dr. Antje Engelhardt filed a complaint against Slater, his company, and the publishers of the book for copyright infringement on behalf of Naruto based on Next Friend Standing. The complaint alleges that the Doctor “has known, monitored, and studied Naruto since his birth.” but does not allege any history between the macaque and PETA. Naruto, 2018 U.S. App. LEXIS at *4. The district court granted motions to dismiss finding that Naruto had failed to establish statutory standing under the Copyright Act and PETA and Dr. Engelhardt timely appealed. Id. Following the appeal, Dr. Engelhardt withdrew from the litigation, leaving PETA to represent Naruto as his “next friend”. Id.
Despite coming to settlement agreements, the 9th Circuit court of appeals stated that it would still hear the case. See Debra Cassens Weiss, Monkey has no standing to assert copyright infringement in selfie case, 9th Circuit rules, April 24, 2018 (http://www.abajournal.com/
Ultimately, the court agreed with the lower court in finding that Naruto did not have statutory standing under the Copyright Act and it found that PETA did not have standing to assert that it was Naruto’s “next friend”. While the lower court punted the issue of Article III standing, the Court of Appeals did find that based on precedent the complaint included sufficient facts to establish adequate standing under Article III of the U.S. Constitution. See Naruto at *10-*11.
Dolphins and Article III
The Naruto court relied on a previous decision by that same court to determine whether Naruto had federal standing to bring the case. See Naruto at *10-*11. That case was Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004) which involved “the world’s whales, porpoises, and dolphins. . .” and their injuries from the Navy’s use of sonar systems. Cetacean, at 1171.
The Cretacean court stated that “[t]o satisfy Article III, a plaintiff must show that (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 1174 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Sys. (TOC), Inc., 528 U.S. 167, 180-81 (2000))(internal quotation marks omitted).
That court ultimately stated that “[a]rticle III does not compel the conclusion that a statutorily authorized suit in the name of an animal is not a ‘case or controversy.’” Id. at 1175 (emphasis added). The court went so far as to find that it can “see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents.” Id. at 1176. While also ultimately finding that the marine animals didn’t have statutory grounds to bring their suit, the court did not close the door completely on the possibility: “if Congress and the President intend to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, [do] so plainly.” Id.at 1179.
The Copyright Act and Animal Standing
While finding that there was Article II standing, the Naruto court did ultimately find that the monkey had no standing under the Copyright Act. Naruto, 2018 U.S. App. LEXIS at *11-*13. Based on the reasons of the Cretacean court as discussed above, because the Copyright Act “does not expressly authorize animals to file copyright infringement suits”, Naruto lacked the statutory standing to bring the suit. See id. at *12 (emphasis added).
Throughout the Copyright Act, Congress uses terms such as “children”, “grandchildren”, “legitimate”, “widow”, and “widower”. These terms “imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law.” Id. at *13. In support, the court cited a case that stated that “it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Naruto at *12-*13 (cited from Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)).
Should We Allow Animals to have Standing?
I agree with the conclusion of the court that “Naruto – and, more broadly, animals other than humans – lack statutory standing to sue under the Copyright Act.” Id. at *13. Although this conclusion is limited to the Copyright Act, with maybe very minor exceptions, I think that this should be the general rule of thumb.
I am not sure I can see the need to allow animals to have standing to sue in our courts. Not to say animals shouldn’t have rights. I am fully in support of laws protecting animals and their lives, habitats, and well-being. However, I feel like these laws should be and continued to be enforced through repercussions against the violator, and not giving animals standing in the courts. I am just not sure that I see what would be achieved allowing groups or persons to sue on the animals’ behalf. I think it poses more of a risk to the animals. As the concurring opinion opined regarding PETA’s true intentions: not wanting the court to make a monkey out them, “when it came down to a possible negative, precedential ruling from the panel, PETA quickly sought to protect the institution, not the claimed real party in interest. PETA used Naruto as a pawn to be manipulated on a chessboard larger than his own case.” See Id. at *37 (concurring opinion by Circuit Judge N.R. Smith)(internal quotation marks omitted). I think that organizations or individuals will not hesitate to use animals as pawns, as PETA appeared to be doing with Naruto, to acquire some port of personal gain or push some personal agenda. Animals aren’t able to defend themselves against being taken advantage of.
I found it interesting that the Court did not discuss the “Intellectual Property Clause” of the U.S. Constitution. See U.S. Const., Art. I, § 8, cl. 8. This clause is what has given Congress the authority to right the laws pertaining to both copyrights and patents. In pertinent part, this clause grants “exclusive right[s]” to “authors” for their “writings”. Id. Using the reasoning of the Naruto court, the term “author” is inherently a humanistic term. I highly doubt that it was the intent of our Founding Fathers for that right to extend beyond what would typically be contemplated as an author.
While the Cretacean court left the onus with Congress to plainly state whether it is their intention to allow animals to have statutory standing, I would be a monkey’s uncle if that ends up coming to fruition.
Cameron Mitchell is a rising 3L at Sandra Day O’Connor College of Law. On the personal side, Cameron stay busy chasing his three boys around and preparing with his wife to welcome twin boys in the fall. He better start teaching them all basketball! When he can find time, Cameron enjoys building furniture and creating in anyway he can from graphic design to building Legos.