'Monkey Selfie' Appellate Ruling Finds Animals Can't File Copyright Suits

9th Circuit Court of Appeals 2017 - Getty - H 2018
Justin Sullivan/Getty Images

The infamous "monkey selfie" legal battle has prompted the 9th Circuit to hold definitively that animals can't sue for copyright infringement, and an opinion issued Monday largely serves as an indictment of People for the Ethical Treatment of Animals for purporting to represent the primate's interests.

Here's a snapshot of how this monkey business ended up in a federal appellate court: In 2011, photographer David Slater set up his camera in an Indonesian forest, and Naruto, a crested macaque, snapped some photos of himself. Slater later published the pictures and PETA sued, claiming he infringed on Naruto's copyright as the author of the photos.

The initial lawsuit was dismissed on the grounds that a monkey lacks standing to sue. PETA appealed, arguing that the U.S. Copyright Act doesn't specify the author of a work must be human. During the course of proceedings, a falling out between the primate expert who initially served as Naruto's "next friend" and PETA led to the scientist dropping out of the case. A next friend's role is to assist someone, typically a child or another person with a disability, to navigate litigation — and the change raised the question of whether PETA was fit to step into that role on behalf of Naruto

The case settled after the parties argued before the 9th Circuit last July, but the appeals court decided it would rule on the matter anyway. 

"We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement," writes Circuit Judge Carlos Bea in the opinion issued Monday. "Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey — and all animals, since they are not human — lacks statutory standing under the Copyright Act. We therefore affirm the judgment of the district court."

The court also found that it "gravely" doubts PETA could assert next friend status since it had not established a significant relationship with Naruto and, more importantly, because "an animal cannot be represented, under our laws, by a 'next friend.'"

The court skewers PETA and its motives in several footnotes throughout the opinion. In one, it challenges the organization's reason for settling with Slater and notes that Naruto wasn't a party to the settlement.

"[I]n 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," states the opinion. "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."

The absence of a next friend doesn't necessarily doom Naruto's lawsuit, the 9th Circuit held, so it went on to address the merits of the case. Based on controlling case law and the text of the U.S. Copyright Act, the court held Naruto, as a non-human animal, lacks standing to file this suit.

Circuit Judge N. Randy Smith concurred in part, but wrote a lengthy dissent centering on why next friend standing is a jurisdictional issue and arguing that federal courts didn't have jurisdiction to hear the case and the appeal should have been dismissed. 

"Allowing next-friend standing on behalf of animals allows lawyers (as in Cetacean) and various interest groups (as here) to bring suit on behalf of those animals or objects with no means or manner to ensure the animals’ interests are truly being expressed or advanced," Smith writes. "Such a change would fundamentally alter the litigation landscape. Institutional actors could simply claim some form of relationship to the animal or object to obtain standing and use it to advance their own institutional goals with no means to curtail those actions."

Because we're incapable of knowing whether animals would like to own copyrights or open bank accounts, he argues, it's irresponsible to assume other species' desires are the same as our own. Therefore, when the majority found animals like Naruto couldn't ever have next friend standing the analysis should have ended. 

"By both concluding that next-friend standing is nonjurisdictional and reaching the merits of the Copyright Act question, the Majority allows PETA (with no injury or relationship to the real party in interest) to sue on Naruto’s behalf, because it obtained legal counsel to allegedly represent Naruto," Smith writes, noting in a footnote that PETA's actions demonstrate the "abuse" the majority opinion will allow. "It is clear: PETA’s real motivation in this case was to advance its own interests, not Naruto’s."

Slater was represented by Andrew Dhuey, and PETA was represented by David Schwarz. Read the full opinion below.