PETA’s Monkey Selfie Lawsuit? Ninth Circuit Rules It’s Mostly Monkeyshines

Naruto, by Naruto, using David Slater's equipment

Remember the “Monkey Selfie” picture that went viral about 7 years ago?

Wildlife photographer David Slater had left some of his equipment on the floor of an Indonesian jungle. When he retrieved it, he found several selfies taken by a grinning Sulawesi crested macaque. One particular photo hit the internet and naturally went viral. Honestly, who wouldn’t like a grinning monkey selfie?

Slater published a book of his photos including the macaque’s selfie. But he committed a colossal sin: he failed to obtain permission of the monkey—the subject and the photographer—to publish.

Unfortunately for Slater, People for the Ethical Treatment of Animals (PETA) was lurking in the thick legal jungle nearby.

In September 2015, PETA sued Slater and the publishing company claiming they infringed on the mirthful macaque’s copyright in the photos. PETA brought the suit on behalf of “Naruto” the monkey as his “next friends” (whatever those are)[i] seeking, among other things, legal recognition of Naruto’s copyright, “disgorged profits” for Naruto—which PETA, of course, would control and use for him, his “community,” and habitat—and his costs and attorney fees.

When I first heard of this suit back in 2015, I wondered how they were able to find Naruto and sign him up as a client. The suit identified him as a “free, autonomous six-year-old male member of the Macaca nigra species, also known as a crested macaque, residing in the Tangkoko Reserve” on Sulawesi. Well, that narrows it down.

But, to get properly into court, you need to have something the law calls “standing.” To have standing to bring a lawsuit, you must be someone who has a legally protectable interest in a dispute that entitles you to seek relief and remedy from the court. Individuals, businesses, organizations, government divisions—virtually any person or group—can qualify for standing if they are sufficiently connected to the subject matter of the suit such that a court could grant them relief. Standing requirements can often be found in a constitution or a specific statute.

I never thought an individual monkey from Indonesia, however cute or precocious, could sue for copyright infringement—even in California. Assuming Naruto could be distinguished from the thousands of crested macaques in Sulawesi, he would not have constitutional or statutory standing to sue, right?

Enter PETA as Naruto’s “next friend.” Certainly, their hearts must be in the right place. They only want poor Naruto and his macaque community to thrive and prosper in a protected habitat.

Incredibly, even the Ninth Circuit found their suit for Naruto over the top. How they did it shows how crazy they thought PETA’s suit was.

See, the federal district court in California dismissed Naruto’s lawsuit, so PETA appealed to the Ninth Circuit. In July 2017, the Ninth Circuit heard oral arguments from PETA, Slater, and the publisher. Oral argument occurs only after the parties have submitted their briefs and written arguments. So, the Ninth Circuit had all the information in July. The parties then settled their case in September 2017 and filed a joint motion to dismiss the appeal. Courts routinely grant such motions because the dispute becomes “moot” at settlement as there is no longer controversy to decide.

But the Ninth Circuit denied the motion and, instead, the appellate court kept the case active.

The opinion of the three-judge panel, which came out last week, is a judicial smackdown equivalent to what you would see in a MMA cage match.

The Ninth Circuit started out saying it “gravely doubt[ed]” PETA could prove a sufficiently “significant relationship” with Naruto to validly assert “next friend” status and, therefore, authority to sue on Naruto’s behalf. The court’s first footnote concludes that PETA’s “deficiencies…go far beyond” the failure of their lawsuit to assert certain facts. They criticized PETA for settling Naruto’s case in exchange for some of Slater’s profits going to protect Naruto’s habitat, noting that “not anything…would necessarily go to Naruto.”

They also chastised PETA for agreeing to dismiss Naruto’s lawsuit leaving him without an advocate: “[H]is supposed ‘friend’…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.”

Ouch.

The court continued, “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.”

And that was all in the first footnote.

Check, and mate.

The court went on for 18 pages, with a blistering concurrence by one of the three judges going another 20-plus pages, describing how PETA’s lawsuit as Naruto’s “next friend” was rightly dismissed as he had no statutory standing to sue for copyright infringement. It even awarded Slater and the publisher their attorney fees on appeal.

However, not all is sane in the Ninth Circuit for the majority held Naruto actually had constitutional standing to sue! The opinion recognized that the lawsuit, while suffering serious deficiencies, alleged “facts sufficient to establish Article III [of the US Constitution] standing,” such that the court needed to rule on whether Naruto had standing to sue specifically for copyright infringement. A subsequent footnote in the majority opinion makes several points about why animal standing is a bad idea, but they did find constitutional standing nonetheless based on precedent. Circuit Judge N. R. Smith who wrote the concurrence disagreed on the majority's interpretation of prior case precedent.

A couple of things to note about this monkey business.

First, of course, this is all about money and publicity. PETA has never been shy about taking wacky positions or using provocative marketing. And they naturally sued in California federal court because they figured they would get a sympathetic leftist judge at the trial level, or a panel of them at the Ninth Circuit. It didn’t work. Judges at each level found their lawsuit to be mostly monkeyshines. Even though they got some cash out of Slater, they paid a heavy price in a brutal published appellate decision and must pay attorney fees.

Second, this is just the latest example of why courts should not be used as substitute legislatures. That’s not to say the three-judge panel here acted in an activist way. But you know PETA brought this suit because they wanted to use the court to determine affirmatively that animals have broad standing to sue in all kinds of cases. Imagine the panoply of litigation a favorable decision would have opened for PETA. Leftists like to use the courts to establish what they know legislatures will not because the will of the people is not behind them. We can only hope decision like this will discourage the practice.

Finally, photographers are now free to leave their cameras around for animals to take selfies. Our cats and chickens never seem to take selfies on our camera when we leave it out, so I’m not sure there’s a huge potential for success there. But good luck.

Thanks, Naruto. You made us laugh. Sometimes animals do that.

Unfortunately, PETA usually just makes us shake our heads.

[i] Actually standing to sue as a “next friend” is permitted to a third-party to advance a cause of action on another’s behalf. The third-party is the actual party—the “real party in interest—with the next friend simply having authority to pursue the action on their behalf. “Next friend” status is only available under rare situations where the real party in interest is unable to appear on their own behalf, and the “next friend” have a significant relationship with and be truly dedicated to the best interests of the real party in interest.