Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided. I’m Alan Mygatt-Tauber.
This week we’re discussing Naruto v. Slater, a Ninth Circuit Court of Appeals decision about the so-called “monkey-selfie.”
In 2011, wildlife photographer David Slater set up his camera in a nature reserve on the island of Sulawesi, Indonesia. He left the camera unattended and a seven-year-old crested macaque named Naruto took several photographs of himself. Slater and Wildlife Personalities, Ltd. published the Monkey Selfies in a book that Slater created through Blurb, Inc.’s website in December 2014. Throughout the book, Slater admits that Naruto took the photographs at issue.
In 2015, People for the Ethical Treatment of Animals (PETA) and Dr. Antje Engelhardt filed a complaint for copyright infringement against Slater, Wildlife and Blurb as Next Friends on behalf of Naruto. The complaint alleges Dr. Engelhardt has studied crested macaques for over a decade in Sulawesi and has known, monitored, and studied Naruto since his birth. It does not allege any relationship between Naruto and PETA.
The defendants moved to dismiss on the grounds that the complaint fails to state facts sufficient to establish standing under Article III of the Constitution or statutory standing under the Copyright Act. The district court granted the motions to dismiss, holding that Naruto lacked standing under the Copyright Act. On appeal, Dr. Engelhardt withdrew from the litigation, leaving only PETA representing Naruto as his next friend.
After oral argument, PETA and Slater reached a settlement in which Slater would donate 25% of the proceeds of the book to charities that protect the habitat of macaques in Indonesia. Therefore, the parties moved to dismiss the case. However, PETA stated that Naruto was not a party to the settlement and his claims were not addressed. The Court therefore decided to reach the merits of Naruto’s claims, seeing in PETA’s actions a cynical attempt to protect its institutional interests.
The Court first addressed PETA’s standing as a next friend. It noted that it gravely doubted PETA could validly assert next friend status first, because PETA had failed to allege any significant relationship between it and Naruto, and second because an animal cannot be represented by a next friend.
In order to establish next friend standing, the putative next friend must 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. Here, the Court felt that PETA failed to demonstrate the second requirement. Therefore, it could not serve as Naruto’s next friend.
However, the Court went further and held that even if PETA had alleged a significant relationship, it still could not sue as Naruto’s next friend. Here, the Court relied on Supreme Court precedent that the scope of next friend standing is no broader than what is permitted by the statute and there is no authorization for next friend lawsuits brought on behalf of animals. If such standing is to exist, the Court argued, Congress must provide it.
This was not the end of the Court’s analysis. Under a prior Ninth Circuit decision, the Court had held that animals had Article III standing under the Constitution. As such, the fact that PETA lacked standing did not destroy Naruto’s standing under Article III. Based on this Ninth Circuit precedent, with which this panel strongly disagrees, Naruto will have standing if he has been injured in fact, the injury is concrete and particularized, and a court judgment can redress it. It is alleged that Naruto is the author of the photographs, that he has suffered concrete and particularized economic injury through Slater’s publication of the photographs and that his harms can be redressed by a judgment declaring Naruto as the author and owner of the Monkey Selfies.
The Court then turned to the question of whether Naruto had a right to sue under the Copyright Act. This is consistent with the prior Ninth Circuit precedent, which noted that while animals may have Article III standing, they still must demonstrate a right to sue under the specific statutes they intend to enforce.
In this case, Naruto seeks to enforce the Copyright Act. The Court relied on the simple test the prior panel had established: if an Act of Congress plainly states that animals have statutory standing, then animals have such standing. If the statute does not so plainly state, then they do not. Here, the Copyright Act does not expressly authorize animals to file suit for infringement. Therefore, Naruto lacks statutory standing to sue.
Judge Smith concurred in part with the majority opinion. He believed the case had to be dismissed and that the Court’s earlier decision finding that animals have constitutional standing was incorrectly decided. He departs from the majority opinion because he does not believe it was appropriate to go beyond an examination of PETA’s next friend claim. According to Judge Smith, once the Court determined that PETA lacked standing to sue on behalf of Naruto, the case was over. In other words, unlike the majority, he believes that next friend standing is jurisdictional.
Judge Smith relied on prior Supreme Court and Ninth Circuit precedent which held that the burden is on the next friend to clearly establish the propriety of his status and thereby justify the jurisdiction of the court.
In general, Judge Smith noted, the plaintiff must assert his or her own legal rights and interests. The one, narrow exception, to this requirement is next-friend standing, where a party may bring suit without alleging its own injury.
Here, Judge Smith agrees with the majority that PETA failed to allege sufficient facts to establish it could be Naruto’s next friend. He also agreed that animals cannot be represented by a next friend. But he believed this was the end of the inquiry.
I believe that, of the two opinions in this case, Judge Smith’s has the better argument. Based on the case law, the Court’s inquiry should have begun and ended with the question of whether PETA had next friend status. But I actually have a bigger problem with the Court’s decision in this case – it comes very close to being an advisory opinion on the merits, with regard to statutory standing. The two parties had entered into a settlement agreement. While they told the Court that the settlement did not include Naruto and did not address his claims, that seems like a disingenuous and tenuous basis to hold that the Court could still address the merits of this case. Just as the majority accused PETA of putting its institutional interests ahead of Naruto’s, I feel like the majority put its interest, in reaching the merits, ahead of the interests of the law, which is to avoid advisory opinions.
As to the merits, while I agree that Naruto does not have statutory standing to bring the suit here, I also don’t believe that Mr. Slater should own the copyright to the photos. Because he admits Naruto pressed the shutter and took the pictures, these pictures should not have any copyright owner at all.
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