We Interrupt The News Again With Hopefully The Last Update From The Monkey Selfie Case

from the with-next-friends-like-these dept

Mon, Apr 23rd 2018 10:39am — Cathy Gellis

And now for the moment you've all been waiting for: a decision from the Ninth Circuit in the Monkey Selfie case.

Upshot: the case remains dismissed, and the defendants get to recover attorney fees for the appeal. There's also relatively little to say on the copyright front. This case has turned almost entirely into litigation about standing and proven to be a significant wrench in the works for any future litigation anyone, but PETA in particular, might want to bring on behalf of animals.

First, the court skewers PETA over the quality of its "friendship" with Naruto, casting significant side-eye towards PETA's apparent settlement of the lawsuit, which led to its attempt to dismiss the appeal, while at the same time leaving some question as to whether Naruto himself was down with this settlement and plan to dismiss his appeal. From footnote 3:

We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something fromthe settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings from the monkey selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.” See Settlement Reached: ‘Monkey Selfie’ Case Broke New GroundForAnimal Rights, PETA, https://www.peta.org/blog/settlementreached-monkey- selfie-case-broke-new-ground-animal-rights/ (last visited Apr. 5, 2018). But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. 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,” see PETA, https://peta.org (last visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting pawn in its ideological goals. Yet this is precisely what is to be avoided by requiring next friends to have a significant relationship with, rather than an institutional interest in, the incompetent party—a point made by ChiefJustice Rehnquist in Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979). See infra page 9 for exact language.

But repudiating PETA's "next friend" standing doesn't end the inquiry. There is a 2004 case from the Ninth Circuit, Cetacean Community v. Bush, which established the precedent that animals might be able to sue for themselves, even without a "next friend" to do the suing for them. The court decides it has to defer to that precedent, although so reluctantly as to undermine its persuasive effect in future cases.

Reaching that conclusion didn't end the inquiry, however. Cetacean Community means that animals might be theoretically able to sue for themselves in the Ninth Circuit, but it doesn't mean they will necessarily have a viable claim. To figure out whether they do, we have to look at the applicable statute, which in this case is the Copyright Act. And here the court concludes that Naruto, being a monkey, has no standing to sue for copyright infringement.

Several provisions of the Copyright Act also persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“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.”). For example, the “children” of an “author,” “whether legitimate or not,” can inherit certain rights under the Copyright Act. See 17 U.S.C. §§ 101, 201, 203, 304. Also, an author’s “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.” Id. § 203(a)(2)(A). The terms “children,” “grandchildren,” “legitimate,” “widow,” and “widower” all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law. Based on this court’s decision in Cetacean and the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.

So there you go. Our long national nightmare of not knowing whether any random monkey might be able to sue for copyright infringement has been resolved. We may now go about our lives confident in the knowledge that they cannot, at least not in the Ninth Circuit.

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Filed Under: 9th circuit, copyright, david slater, monkey selfie, naruto, next friend, public domain, standing
Companies: peta

45 Comments

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Anonymous Coward, 23 Apr 2018 @ 10:51am

Hey guys, just wondering when the bug where articles expand out of their frame will get fixed?
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Anonymous Coward, 23 Apr 2018 @ 10:54am

Direct PDF link
While I see the embed for the Ninth Circuit's decision in the article here, I had to pull the direct PDF link out of the html source for this page.

I appreciate it that Techdirt articles usually contain a quick hyperlink to make it easy to read longer decisions in another PDF reader. This one's forty-one pages long.
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Anonymous Coward, 23 Apr 2018 @ 11:04am

Animals and corporations are not persons, have no standing.
This whole train of idiocy is the result of modern lawyers idiotically pursuing "logic" based on wrong premises, having lost entire sight of Common Law and Common Sense.

At least Supreme Court is still sane. How much longer that'll last is the question.

[I welcome comments asserting that corporations ARE persons: you'll not help yourself if do! That's a useful similarity for some purposes, but it's NOT Constitutionally based any more than for monkeys.]
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Roger Strong (profile), 23 Apr 2018 @ 11:05am

I for one was disappointed that Michael Cohen's third client did not turn out to be Naruto.

Close, though.
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That One Guy (profile), 23 Apr 2018 @ 11:05am

Fair-weather 'friends' indeed
But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests.

Why, with actions like that you'd almost think that PETA, 'think of the monkey!', friend of animals world-wide and enemy of those that exploit them were themselves simply using Naruto for their own ends. Happy enough to claim 'friendship', and thereby standing, only so long as it benefited them, and yet willing to completely ditch any connection with Naruto the second it became personally inconvenient for them.

Their actions in this case would seem to argue that PETA is less against exploitation of animals in general, and more against exploitation of animals when it's being done by someone that isn't PETA.
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Jinxed (profile), 23 Apr 2018 @ 11:12am

100 years from now, people will be laughing at our stupidity.
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Roger Strong (profile), 23 Apr 2018 @ 11:13am

Re: Animals and corporations are not persons, have no standing.

I welcome comments asserting that corporations ARE persons: you'll not help yourself if do! That's a useful similarity for some purposes, but it's NOT Constitutionally based any more than for monkeys.

OK, I'll bite...

Wikipedia: Corporate personhood: In the United States

As a matter of interpretation of the word "person" in the Fourteenth Amendment, U.S. courts have extended certain constitutional protections to corporations. The basis for allowing corporations to assert such protections under the U.S. Constitution is that they are organizations of people, and the people should not be deprived of their constitutional rights when they act collectively....

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Anonymous Coward, 23 Apr 2018 @ 11:18am

>Their actions in this case would seem to argue that PETA is less against exploitation of animals in general, and more against exploitation of animals when it's being done by someone that isn't PETA.

That isn't really fair. PETA is against exploitation of animals that harms their LIFE and LIBERTY. PETA was only exploiting the animals' PROPERTY RIGHTS. Presumably, PETA would support say, animal marriage--without feeling obligated to reserve a certain number of seats on the New York Stock Exchange for hyenas.[*]

[*]Assuming, of course, they aren't already over-represented.
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Thad, 23 Apr 2018 @ 11:23am

Re:
Why wait?
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jjmsan (profile), 23 Apr 2018 @ 11:32am

Shakespere
So the infinite number of typing monkeys will not be able to copyright their works?
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That One Guy (profile), 23 Apr 2018 @ 11:33am

Re:
That's somewhat more consistent I suppose, though it still leaves them in the position of engaging in(and thereby supporting) exploitation of animals at one level, even as they decry and oppose it at another.
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ArkieGuy (profile), 23 Apr 2018 @ 11:37am

You mean the complete works of Shakespeare?
I'm pretty sure those works are already public domain even if the monkeys came up with them again. ;)
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ryuugami, 23 Apr 2018 @ 11:42am

Our long national nightmare of not knowing whether any random monkey might be able to sue for copyright infringement has been resolved.

Are you sure? Most of the copyright infringement lawsuits are way too stupid to have been written by a Homo sapiens ("wise man").
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Pixelation, 23 Apr 2018 @ 12:05pm

Nice to see that the judge didn't let the real monkeys in this case off the hook.

Maybe PETA will learn not to fling poo while standing in front of the fan.
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Wyrm (profile), 23 Apr 2018 @ 12:05pm

The terms “children,” “grandchildren,” “legitimate,” “widow,” and “widower” all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law.

Although I do agree that the Copyright Act only covers human works, this specific argument feels wrong on many levels.

First, does that mean single humans who never marry nor have children cannot benefit from copyright?

Second, even if they don't marry, animals do have children and grandchildren, whether they acknowledge that relationship or not.

The point should be made based on the fundamental of copyright, not on nit-picking a few words in its implementation.
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DannyB (profile), 23 Apr 2018 @ 12:05pm

Animals
A monkey cannot own a copyright.

But a jackass can be elected president.
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cpt kangarooski, 23 Apr 2018 @ 12:06pm

Re: You mean the complete works of Shakespeare?
Nope! This is the corollary of the independent creation rule. If you independently create a work that happens to be a preexisting public domain work, and you did not copy in order to do it, it is copyrigtable. Of course, everyone’s just going to copy the public domain version, so there’s no point, but you would have a copyright and could have an infringement suit to bring if you were lucky.
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Vidiot (profile), 23 Apr 2018 @ 12:25pm

Re:
Have you seen Michael Cohen's photo side-by-side with Naruto's? Hmmm?
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Anonymous Coward, 23 Apr 2018 @ 12:37pm

Re:
> not on nit-picking a few words

*ahem*
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Anonymous Coward, 23 Apr 2018 @ 1:05pm

Re: Animals
Racism is alive and well.
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Anonymous Coward, 23 Apr 2018 @ 1:10pm

Re: Re:
Yes; the argument would hold more water if it were a case of PETA refusing to bother with the obvious exploitation of an animal for intellectual property rights.

But in this case, they attempted to convert a complaint on behalf of an animal into "personal" benefit (assuming a non-profit has more personhood than an animal).
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Anonymous Anonymous Coward (profile), 23 Apr 2018 @ 1:30pm

Re: Re:
It was a five across photo line up. Cohen, Naruto, Erdogan, Gollum, and Trump. I had a hard time deciding who the culprit was.
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Lawrence D’Oliveiro, 23 Apr 2018 @ 1:35pm

If Animals Have Rights ...
... then mustn’t they also accept responsibilities?

In human society, mature individuals have both responsibilities as well as rights. The only ones who get rights without corresponding levels of responsibilities are the children, and those with intellectual disabilities.
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Anonymous Coward, 23 Apr 2018 @ 2:00pm

Re: If Animals Have Rights ...
If monkeys get to enjoy the privileges of human rights then I want the freedom to fling my poo and laugh at anyone I choose.
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Anonymous Coward, 23 Apr 2018 @ 2:04pm

>Although I do agree that the Copyright Act only covers human works, this specific argument feels wrong on many levels.

This is really the way legal interpretation works. If "rhesus monkey" were included in the definition of "person", then how do we determine which of its children were "legitimate"? More silly lawsuits, with PETA befriending Jojo and SPCA befriending Juju and Gigi who, though younger, have no criminal record? You cannot interpret one part of a statute in such a way that other parts become nonsense.

Corporations pose no problem here, of course, because the children, widows, etc., are relationships defined with reference to specific person in the corporation, not the whole group of people who formed/comprise the corp. (But a marriage license is a kind of incorporation anyway...)
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Ninja (profile), 23 Apr 2018 @ 3:01pm

Re: Re: Re:
Naruto is a handosme, intelligent male monkey (I hope I got the gender right). The others are idiots. I have my doubts about Gollum though.
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Stan (profile), 23 Apr 2018 @ 3:07pm

Re:
(For example, the “children” of an “author,” “whether legitimate or not,” can inherit certain rights under the Copyright Act.)

Dateline Indonesia, 2021: Naruto, the famous monkey -selfie-photographer died sometime over the weekend apparently at the claws of a large Javan hawk-eagle.

PETA has announced that they legally represent the children of Naruto and intend to pursue royalty fees from the photograph on behalf of Naruto's children. It is noted that Naruto passed away Intestate.
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Thad, 23 Apr 2018 @ 4:59pm

Re:

The point should be made based on the fundamental of copyright, not on nit-picking a few words in its implementation.

...what do you think law is, if not minutely examining word choices and their meanings?
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Anonymous Coward, 23 Apr 2018 @ 5:05pm

"Hopefully The Last Update From The Monkey Selfie Case"

Aren't they still arguing about who owns happy birthday?
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Toom1275 (profile), 23 Apr 2018 @ 5:34pm

Re: Re: You mean the complete works of Shakespeare?
Reminds me of that delusional psycho who thought that because she made some unoriginal periodic table-style arrangement of something, that anyone else who happened to do the same must somehow be copying her work.
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Anonymous Coward, 23 Apr 2018 @ 6:45pm

Re: Re: Animals

Racism is alive and well.

So is idiocy.
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Anonymous Coward, 23 Apr 2018 @ 6:47pm

Re:
Yet you will fellate the phallus of a corporation, every time.

You're not fooling anyone, blue boy. You're the biggest fucking corporatist that posts on this site...
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Lawrence D’Oliveiro, 23 Apr 2018 @ 7:13pm

Re: Racism is alive and well.
I thought “jackass” was more of a religion than a race...
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zyffyr (profile), 24 Apr 2018 @ 12:20am

Re: If Animals Have Rights ...
I can't wait until we have Dogs siting on juries.
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dadtaxi, 24 Apr 2018 @ 2:32am

Re: Hey guys, just wondering when the bug where articles expand
Probably when PETA sues for the inherent right for bugs to exist
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Anonymous Coward, 24 Apr 2018 @ 5:25am

Re: Re: Re: Re:
Hey now Gollum was twisted by power beyond his control into a horrible looking monster... wait shit that doesn't narrow it down...
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Wendy Cockcroft, 24 Apr 2018 @ 6:08am

Re: Re: If Animals Have Rights ...
That would result in ruff justice, zyffyr.

I'll see myself out.
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That One Guy (profile), 24 Apr 2018 @ 7:46am

Re: Re: Racism is alive and well.
Not sure about race, but I do distinctly remember one or two articles in the past few months where some truly disgusting individuals seemed to think it was a protected class of some sort.
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Anonymous Coward, 24 Apr 2018 @ 8:22am

Re: Animals and corporations are not persons, have no standing.
"At least Supreme Court is still sane."

Yeah - and their Citizens United ruling really points this out, because corporations are people my friend.

There have been many recent bad decisions out of the scotus, what are you smoking?
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Anonymous Coward, 24 Apr 2018 @ 8:27am

Re: Re:
"children of Naruto"

Sounds like the next blockbuster from disney
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Anonymous Coward, 24 Apr 2018 @ 8:28am

Re: Re: Animals
monkey and ass are separated by species, not race.
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Anonymous Coward, 24 Apr 2018 @ 8:30am

Re: If Animals Have Rights ...
We could easily fill the for profit prisons with the offending animals but will society put up with this silliness?
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Anonymous Coward, 24 Apr 2018 @ 8:32am

Re:
Marriages are people my friend.
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Quick Brown Fox, 24 Apr 2018 @ 10:05am

A wrench in the case
"This case has turned almost entirely into litigation about standing and proven to be a significant wrench in the works for any future litigation . . . ."

Yes, a monkey wrench!
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Anonymous Coward, 24 Apr 2018 @ 2:23pm

Re: Re:
With a hotshot legal team Boruto will be rolling in swag by 2024.
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