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Appeals court blasts PETA for using selfie monkey as ‘an unwitting pawn’

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Monkey can see but monkey can’t sue

monkey selfie crop Photo by Naruto, a Sulawesi crested macaque

On Tuesday, the Ninth Circuit Court of Appeals threw out a copyright lawsuit brought by a selfie-taking monkey.

The parties in Naruto v. Slater settled last September, but the appellate court refused to grant their joint motion to dismiss, imposing this decision against their respective wills, for no apparent reason other than to repeatedly dunk on People for the Ethical Treatment of Animals (PETA). “How do we prevent people (or organizations, like PETA) from using animals to advance their human agendas?” asked the majority in one footnote.

A close-up photo of a Sulawesi crested macaque grinning boldly at the camera went viral on the internet in 2011. According to wildlife photographer David Slater, he had left some of his equipment on the jungle floor, and the monkey had grabbed the camera and taken a selfie. PETA brought a suit against Slater and a self-publishing book company in 2015, claiming that he had infringed the monkey’s copyright by releasing Wildlife Personalities, a self-published book of photography that included the famous monkey selfie.

Why is the Ninth Circuit so mad at PETA? How could a monkey sue for copyright? Can monkeys even own copyright? Why is the monkey’s name Naruto?

While we still don’t know the answer to the last question, the new decision throws some light on the rest of it. The panel of three judges (Judge Carlos Bea, Judge Randy Smith, and Judge Eduardo Robreno) ruled that not only did PETA lack “next friend” status to bring the lawsuit on behalf of the monkey, animals in general don’t have standing to sue under the Copyright Act.

It’s likely that PETA tried to settle the lawsuit before a decision was reached in order to avoid a ruling that might make it harder for them to bring future lawsuits. In a remarkable self-own, this ruling did that and more.

As expected, the panel said that it was bound by Cetacean v. Bush, a case that says animals can’t sue unless Congress makes it clear in the statute that animals can sue. In Cetacean, a “self-appointed attorney for all of the world’s whales, porpoises, and dolphins” sued the government over the Navy’s use of sonar.

The Ninth Circuit concluded that the Copyright Act does not clearly state that animals can sue. In fact, with its numerous references to “legitimate” children and “widows and widowers,” it probably only applies to humans. Under Cetacean, monkey can see but monkey can’t sue.

A cite to Cetacean v. Bush and a quick analysis of the Copyright Act should take up about three paragraphs, but the decision runs about fifteen pages, with an even longer concurrence.

In long, rambling footnotes, the court went after PETA with a vengeance. In one footnote that cites to the organization’s own website, the court wrote:

Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” PETA seems to employ Naruto as an unwitting pawn in its ideological goals.

In fact, the majority thought that Cetacean v. Bush was wrongly decided because it didn’t go far enough in barring PETA-style lawsuits. Although Cetacean had concluded that the world’s “whales, porpoises, and dolphins” weren’t allowed to sue under that particular statute, the case says that the US Constitution itself doesn’t stop animals from bringing lawsuits.

This panel disagreed, but said it was bound by the precedent of Cetacean until the case was overruled by a higher court — implicitly calling for a higher court (like a Ninth Circuit en banc panel or the Supreme Court) to go back and make it much harder for PETA to sue for animal rights.

The 20-page concurrence was even harder on the animal rights organization, arguing that the majority hadn’t gone far enough to stop future litigation by PETA.

PETA originally brought the lawsuit as a “next friend,” where a very young child or someone in prison might be too “incompetent” or unavailable to sue. In cases like that, the law allows a third party to sue on their behalf as a “next friend” — provided, of course, there’s a suitably close relationship.

All three judges agreed that animals in general can’t be represented by “next friends.” But Smith wanted to go further and say that PETA’s lack of next friend status should automatically throw the lawsuit out of court. In this case, the court went ahead and treated Naruto, a literal monkey, as a real plaintiff.

For most laypeople, this is a legalistic quibble, but it was enough to send Judge Smith ranting for pages and pages.

“Indeed, this case is a prime example of the abuse the Majority opinion would now allow,” he wrote in a three-page footnote raging over PETA’s actions. He said that “PETA’s real motivation in this case was to advance its own interests, not Naruto’s,” and that the organization “used Naruto as a ‘pawn to be manipulated on a chessboard larger than his own case.’”

“Unfortunately, PETA’s actions could be the new normal under today’s holding,” Smith wrote dourly.

A scourge of monkey copyright lawsuits isn’t the worst kind of future to live in. Regardless, the Ninth Circuit appears to be very, very mad at PETA. The court also granted Slater attorney’s fees on appeal, meaning PETA will have to pay for the photographer’s lawyer.

Technically speaking, the animal rights organization could appeal again, but this seems neither likely nor wise.


Update, April 24th 9:20AM PT: The article previously referred to Judge Smith’s opinion as a dissent, rather than a concurrence, and has now been corrected.