Although three federal judges have sought to quash some copyright monkeyshines, a fourth and ranking jurist has found their legal logic in doing so to be bananas and unappealing. At least for now, however, the recent decision by the U.S. Court of Appeals for the Ninth Circuit appears to have settled the issue of whether non-human primates possess statutory standing to press infringement suits.

In case you haven’t gotten into the swing of the infamous monkey selfie case, in 2011, Naruto, a seven-year-old crested macaque, took an interest in an unattended camera parked in the wilderness. The great ape, who calls Sulawesi, Indonesia, home, fired off several portraits without the assistance of any human by monkeying around with the shutter button of an at-ready camera.

Photographer David Slater, who owned and had set up the device, went ape over the pictures shot by Naruto and published a series of these selfies.

Four years later, the critter advocacy group People for the Ethical Treatment of Animals, aka PETA, filed a complaint for copyright infringement against Slater on behalf of Naruto. Slater fired back with a motion to dismiss, arguing that the plaintiffs lacked standing under the Copyright Act to sue on the animal’s behalf. Antje Engelhardt, a longtime macaque scholar, initially joined PETA in making the infringement complaint against Slater but she later withdrew from the case.

Friends with legal benefits

PETA, in its suit, asserted it could legally step in to the monkey’s business under the legal status known as “next friends.”

Established by Coalition of Clergy v. Bush, a putative next friend may sue if she can show (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner. 310 F.3d 1153, 1159-60 (9th Cir. 2002).

U.S. District Judge William H. Orrick in San Francisco hooted at the PETA argument, and tossed Naruto’s case, which the animal advocacy group then appealed.

The appellate judges upheld Orrick, and stated that PETA failed to meet the “significant relationship” requirement, because it did not claim to have a relationship with Naruto any more significant than to any other animal.

Copyright neither fuzzy nor furry

In their findings, the appellate judges cited several authorities to determine that animals lack standing specifically under the Copyright Act to pursue claims against people like Slater.

The judges, in fact, also referred to the Ninth Circuit’s own ruling in Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), a case in which this same appellate court held that, in the absence of any such statement by Congress or the president intending to take the extraordinary step of authorizing animals to sue, the myriad pods of whales in the world’s seas lack statutory standing to sue.

In Cetacean, a self-appointed attorney asserted that he was representing the interests of all of the world’s whales, porpoises, and dolphins in challenging what critics contended are the harmful effects of the U.S. Navy’s low-frequency active sonar program, which booms noisy signals across broad expanses of the seas.

The appellate court refused to monkey around with what would have been a whale of a decision then to allow an animal rights case to advance and to silence what the Navy deemed an important way to protect national security. The judges ruling in Naruto said they could not go ape and upset the Cetacean precedent, unless, perhaps, it is overruled by an en banc panel or by the U.S. Supreme Court.

Horse pucky in a ruling?

It is worth noting that one of the three appellate judges wrote a concurrence to the Naruto dismissal. But U.S. Senior Judge N. Randy Smith saw different reasons to reject not only a simian appeal but the whole hog of the Naruto case. He said to not do so cracks the door to illogic and maybe more legal circuses. As he wrote of what he termed PETA’s “frivolous” suit:

I concur that this case must be dismissed. Federal courts do not have jurisdiction to hear this case at all. Because the courts lack jurisdiction, the appeal should be dismissed and the district court’s judgment on the merits should be vacated.

Smith contends that his colleagues — Orrick below and Carlos T. Bea and Eduardo C. Robreno  with him for the Ninth Circuit — took a wrong turn by misreading Cetacean as somehow implying that Article III of the U.S. Constitution gives animals standing to sue at all:

[T]he Cetacean court seemed to conclude that animals may have Article III standing, and then examined the statutory standing questions before it. 386 F.3d at 1174–79. The Cetacean court did not (though it most certainly should have) examine whether it was appropriate for a ‘self-appointed attorney’ to bring a case on behalf of the ‘Cetacean Community’ and articulate ‘their’ interests. Id. at 1171–72. There can be no reasonable argument that the lawyer in Cetacean spoke to, and received instructions from his client, the ‘Cetacean Community.’ Rather, he functioned as a purported next friend, arguing that certain Navy sonar technology injured the members of the ‘Cetacean Community.’ Id.

But Smith continued, if animals lack Article III standing, both precedent from the U.S. Supreme Court and the Ninth Circuit preclude consideration, then, of creatures great and small also then getting “next friend” support. So, have the appellate judges left PETA and other animal advocates new threads to swing another appeal or case on?


Illustration: Google maps and Naruto public domain via Wikipedia