10 Wake Forest L. Rev. Online 15
Matthew P. Hooker*
I. Introduction
When David Slater left his camera unattended in Indonesia,
little did he realize the enormous legal battle that would result from that simple
act.[1] With a single snap, a “curious male crested
black macaque” named Naruto not only captured an iconic photograph, but also
managed to jumpstart a legal campaign to assert animals’ rights to sue in
federal court and protect their interests in their created works.[2] If successful, the lawsuit would have been
the first legal declaration that an animal owned property.[3]
Naruto’s case raised intriguing legal questions and stole the
public’s attention. The lawsuit, Naruto v. Slater,[4]
even took first place for the U.S. Chamber Institute for Legal Reform’s survey
of the “Top Ten Most Ridiculous Lawsuits of 2015.”[5] The case has been called “curious,”[6]
a “stunt,”[7]
and simply “absurd.”[8] But this case, dealing with who owned the
resulting “Monkey Selfies” and who could sue to protect those rights, raised
intriguing questions about standing for nonhuman entities.[9] It also raised novel questions regarding
authorship under the Copyright Act and how creativity is protected in the
United States.[10]
This Article will explore the intriguing and unique case of
the “Monkey Selfies” and its implications in a variety of legal spheres. In Part II, this Article will examine the
standing doctrine in general, as well as the legal status of animal standing
prior to the Naruto case. In Part III, this Article will turn to
consider the facts and circumstances leading up to the Naruto case, the proceedings in the district court, and the
subsequent appeal and opinion. Part III
will also analyze the Ninth Circuit Court of Appeals’ criticism of the binding
precedent from the case Cetacean
Community v. Bush.[11] In Part IV, this Article will consider the
legal consequences of the Naruto
opinion: the split within the Ninth Circuit, the implications for animal
standing in the future, and the impact of Naruto on other nonhuman
entities, including the case’s effect on the Copyright Act specifically.
II. Animal Standing
Before Naruto
A. Standing in
General
The doctrine of standing is “rooted in the traditional
understanding of a case or controversy.”[12] The United States Constitution only grants
federal courts jurisdiction over “cases” and “controversies,” establishing the
bare minimum necessary to bring suit in federal court.[13] Standing under Article III of the
Constitution requires three elements: “The plaintiff must have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial
decision.”[14]
A plaintiff must also have statutory standing.[15] “[T]he nonconstitutional standing inquiry is
whether a particular plaintiff has been granted a right to sue by the statute
under which he or she brings suit.”[16] To determine statutory standing, one simply
examines the statute under which the plaintiff is suing, “a purely statutory
inquiry.”[17]
However, statutory standing does not automatically create
Article III standing; Congress’s grant of statutory standing cannot compensate
for the lack of Article III standing.[18] If Congress attempted to confer statutory
standing on an entity that lacked Article III standing (e.g., an animal), the
federal court would be still deprived of subject matter jurisdiction, forcing
it to dismiss the case.[19]
B. The Cetacean Community
Case
The primary case addressing animal standing before Naruto was Cetacean Community v. Bush.[20] In that 2004 case, the Ninth Circuit held
that the world’s whales, porpoises, and dolphins possessed Article III standing
to sue,[21]
yet lacked statutory standing.[22] The court had to decide whether the “Cetacean
Community” could sue in their own name under the Endangered Species Act[23]
(“ESA”), the Marine Mammal Protection Act[24]
(“MMPA”), and the National Environmental Policy Act[25]
(“NEPA”).[26]
The Ninth Circuit held there was no reason why Article III
would keep Congress from granting standing to animals.[27] The court pointed out that fully competent
humans are not the only entities to have standing—corporations, partnerships,
trusts, children, and mentally incompetent individuals can all have standing.[28] And Article III does not explicitly exclude
animals from its ambit. Moreover, as the
court stated, “Animals have many legal rights, protected under both federal and
state laws.”[29]
But the Ninth Circuit drew the line at statutory standing
under the ESA, MMPA, and NEPA.[30] Nothing in those statutes appeared to allow
animals themselves to act as plaintiffs.[31] For example, the ESA’s citizen-suit provision
granted standing to “any person.”[32] But the court held that “[t]here is no hint
in the [statutory] definition of ‘person’ that the ‘person’ authorized to bring
suit to protect an endangered or threatened species can be an animal that is
itself endangered or threatened.”[33] The court concluded that “[i]f Congress and
the President intended to take the extraordinary step of authorizing animals as
well as people and legal entities to sue, they could, and should, have said so
plainly.”[34] Without a “plain[]” statement in the statute
authorizing animal standing, the Cetacean Community lacked statutory standing.[35]
C. Other Cases &
Commentary
Cetacean Community
also had to address a prior Ninth Circuit case from 1988—Palila v. Hawaii Department of Land & Natural Resources.[36] There, the court stated that a species of
endangered bird had “legal status and wings its way into federal court as a
plaintiff in its own right.”[37] Although this reasoning purported to confer
both types of standing on the bird, subsequent cases (even Cetacean Community) held this statement was nonbinding dicta.[38]
Additionally, in 2000, Professor Cass Sunstein wrote that
“[u]nder existing law . . . animals lack standing to sue in
their own right, for Congress has restricted standing to ‘persons.’ But it also means that Congress can accord
standing to animals if it chooses to do so.”[39] Sunstein articulated the following standard:
“[I]t should be clear that the question of whether animals have standing
depends on the content of positive law.
If Congress has not given standing to animals, the issue is at an end.”[40] Sunstein also forecast that Congress might soon
begin to confer standing on animals.[41]
III. The Naruto Case
A. The Selfies
In 2011, Naruto, a crested macaque, took a series of selfies
using photographer David Slater’s camera.[42] Slater published and sold a book containing
some of the photos.[43] One photo became extremely popular and was
circulated on the internet.[44] Consequently, People for the Ethical
Treatment of Animals (“PETA”) filed suit on behalf of Naruto, asserting next friend
status, and alleged that Slater committed copyright infringement by publishing
the Monkey Selfies.[45]
B. District Court
Proceedings
In its complaint before the U.S. District Court for the
Northern District of California, PETA argued that Naruto, not Slater, was the
author of the Monkey Selfies.[46] PETA acknowledged that a “claim of authorship
by species other than homo sapiens”
might be “novel,” but argued the term “authorship” under the Copyright Act was
“sufficiently broad so as to permit the protections of the law to extend to any
original work, including those created by Naruto.”[47] PETA sought a variety of forms of relief,
including an order permitting the organization “to administer and protect
Naruto’s authorship of and copyright in the Monkey Selfies” by giving PETA “all
net proceeds from the sale, licensing and other commercial use of the Monkey
Selfies.”[48]
In response, Slater filed a Motion to Dismiss for both lack
of standing and failure to state a claim.[49] Slater relied on Cetacean Community, arguing that since the Copyright Act did not
explicitly give nonhumans standing to sue for copyright infringement, Naruto
could not have standing.[50] He called the notion that a monkey was an
“author” under the Copyright Act a “farcical journey Dr. Seuss might have
written.”[51] While Slater acknowledged there might be good
arguments for conferring legal standing on animals in certain circumstances,
“especially with regard to legislation enacted to protect the animals in
question,”[52]
he also asserted that Congress, not the federal courts, was the appropriate
entity to confer standing.[53] But he ultimately rested on the Ninth
Circuit’s controlling precedent.[54]
The district court granted Slater’s motion to dismiss, ruling
that Naruto lacked standing under the Copyright Act[55]
and declining to even discuss Article III standing.[56] Relying on Cetacean Community,[57]
the court ruled that the Copyright Act “does not ‘plainly’ extend the concept
of authorship or statutory standing to animals.”[58] Additionally, the court deferred to the
Copyright Office’s interpretation of the statute—the Copyright Office’s
Compendium stated that only works created by humans were copyrightable.[59]
C. Arguments Before
the Ninth Circuit
On appeal, PETA raised one issue: whether the fact that
“Congress did not expressly grant
standing to animals to sue under the Copyright Act” meant that Naruto lacked
standing.[60] PETA characterized this as an issue of first
impression and also pointed out that the issue extended beyond animal
authorship to questions regarding whether works “independently created by
artificially intelligent computers are entitled to copyright protection.”[61] PETA disagreed with the district court’s
reasoning that Naruto lacked standing because the Copyright Act did not
expressly give standing to animals: “[T]hat reasoning misses the mark: Congress
did not provide an ‘express’ definition at all.
By its silence, Congress accepted the broad constitutional notion of
authorship and the judicial construction that had been in place since at least
the 19th century.”[62]
PETA also pointed out that a nonhuman can be the author of a
copyrighted work. For instance, 17
U.S.C. § 201(b) makes an employer, necessarily including business entities,
the author of certain works. “This
proposition is so firmly established in the jurisprudence that most copyright
cases to reach the United States Supreme Court have been filed by authors who
are nonhumans, ranging from motion picture studios to music publishers to
others.”[63]
PETA encouraged the court to consider the Copyright Act
broadly.[64] It concluded by noting that “if animals
cannot be authors, there is no copyright protection for their works.”[65] That, PETA asserted, was inconsistent with
the notion, and prior precedent, that “[c]opyright protection extends to all ‘original works of authorship fixed
in any tangible medium’ of expression.”[66] “There is no doubt that the general public
has an interest in works of art, regardless of their authors’ characteristics
or attributes. The tremendous interest
in Naruto’s work and Defendants’ attempts to exploit that interest (and to bar
others from doing so) only buttresses this conclusion.”[67]
In response, Slater asserted similar arguments to those in
his motion to dismiss. He reasserted
that Cetacean Community was controlling because none of the
four statutes considered by the Ninth Circuit in that case “expressly excluded
non-human animals from having statutory standing, but all four lacked the
requisite plain statement indicating legislative intent to take that
‘extraordinary step’ in federal jurisprudence.”[68] Two of the statutes used the term “person”
when conferring standing and two had no express grant of standing at all.[69] But, according to Slater, the common thread
between these four statutes was that none of them explicitly granted standing
to nonhuman animals, which was why the plaintiffs in that case failed to
establish standing.[70] Since the Ninth Circuit in that case held
that the absence of “clear direction from Congress”[71]
precluded animals having standing, Slater argued that “Cetacean Community set forth a straightforward test for nonhuman
animal statutory standing, and the Copyright Act fails that test.”[72] Slater also challenged PETA’s standing to sue
as next friend because “PETA did not allege any relationship with Naruto, much
less a significant one.”[73]
D. The Ninth Circuit’s Opinion
After oral arguments were held on July 12, 2017,[74]
the parties filed a joint motion to dismiss the appeal and vacate the judgment
below.[75] The parties informed that court that
they—Slater and PETA, not Slater and Naruto—had entered into a settlement
agreement on September 8, 2017.[76] But the Ninth Circuit refused to dismiss the
appeal.[77] It reasoned that since a decision in this
case would address a “developing area of the law,” such a decision would be
helpful to lower courts.[78]
The Ninth Circuit affirmed the district court in a published
opinion on April 23, 2018.[79] The court first held that PETA lacked
standing as Naruto’s next friend because PETA had failed to establish the
requisite significant relationship with Naruto and because animals cannot be
represented by a next friend.[80] But the court held that it also had to
consider Naruto’s standing independent of any next friend.[81] Bound by Cetacean
Community, the court concluded that animals can have Article III standing.[82] But the court expressed reluctance to follow Cetacean
Community, suggesting it was incorrectly decided.[83] This disagreement is discussed more
extensively below.
In addressing statutory standing, the court referred back to Cetacean Community, observing that “[i]f Congress and
the President intended to take the extraordinary step of authorizing animals as
well as people and legal entities to sue, they could, and should, have said so
plainly” and that the “absence of any
such statement” indicated a lack
of standing.[84] To the Ninth Circuit, this was “a simple rule
of statutory interpretation.”[85] The Naruto
court then synthesized a bright-line rule: “If an Act of Congress plainly
states that animals have statutory standing, then animals have statutory
standing. If the statute does not so
plainly state, then animals do not have statutory standing.”[86]
With that clear rule, resolving Naruto’s standing question
was straightforward. Because “[t]he
Copyright Act does not expressly authorize animals to file copyright
infringement suits under the statute. . . . Naruto lacks
statutory standing.”[87] The Ninth Circuit rejected PETA’s argument
about entity standing, noting that corporations have previously been held to be
“persons” for both constitutional and statutory standing.[88]
The Ninth Circuit also considered the context of the
statute’s language.[89] The court noted that the Copyright Act refers
to “children” of an author.[90] The Act also discusses the “widow or widower”
of an author.[91] Consequently, “[t]he 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.”[92]
Additionally, the court did not address PETA’s argument that the district court
improperly relied on the Copyright Office Compendium. The Compendium has since been cited as
authoritative alongside the Naruto
opinion.[93]
Although the court of appeals acknowledged that it was bound
by prior Ninth Circuit precedent, it expressed displeasure with the Cetacean Community decision.[94] The court did not mince words: “Although we
must faithfully apply precedent, we are not restrained from pointing out, when
we conclude after reasoned consideration, that a prior decision of the court
needs reexamination. This is such a
case.”[95]
The Naruto court
asserted unequivocally that “[a]nimals have neither constitutional nor
statutory standing.”[96] The court noted that Cetacean Community was the only case to ever hold that animals have
Article III standing.[97] With respect to statutory standing, the court
also asserted that animals do not possess any sort of “cognizable interests”
and that therefore “they cannot bring suit in federal court in their own names
to protect such interests unless Congress determines otherwise.”[98]
IV. Consequences of Naruto
The Naruto decision provides little resolution to
questions of animal standing in general and authorship under the Copyright
Act. This Part considers the
consequences of the Ninth Circuit’s opinion in a variety of contexts, exploring
the new questions that are raised and the decision’s impact on existing
statutes.
A. Internal Circuit
Split
The decision in Naruto
revealed a split within the Ninth Circuit.
The Naruto panel did not think animals have any type of standing,
in direct contradiction to the Cetacean
Community panel. By calling into doubt Cetacean Community’s rationale and conclusion, the Naruto
panel demonstrated a divide within the Ninth Circuit, opening the possibility
of subsequent review of the issue.
Ultimately, this decision suggests that the question of Article III
standing for animals is not settled law.
For future cases in the Ninth Circuit, Cetacean Community
is still binding precedent.[99] But the criticism by the Naruto court provides fodder for future litigants to argue that an
en banc panel of the Ninth Circuit should review and overturn Cetacean Community. One wrinkle in this, however, is that the
Ninth Circuit did decline to reconsider the Naruto
case en banc.[100]
For cases outside of the Ninth Circuit, neither Cetacean Community nor Naruto are binding authority. The Naruto
court noted the absence of cases conferring any sort of Article III standing on
animals.[101] Thus, Cetacean
Community and Naruto present
opposing views that could be implemented in other jurisdictions.
B. Implications for
Animal Standing in the Future
Professor Sunstein’s analysis from 2000[102]
is strikingly like the standard articulated by the Ninth Circuit in Naruto.
Sunstein’s position was that “it should be clear that the question of
whether animals have standing depends on the content of positive law. If Congress has not given standing to
animals, the issue is at an end.”[103] The near-identical rule from Naruto (originating from Cetacean Community) serves as a clear call to
legislative bodies. At least in the
Ninth Circuit, if citizens want animals to be able to sue in their own right,
legislatures must act since the federal courts will not find standing
otherwise.
There are many federal statutes that protect animals in some
way.[104] But since none of them explicitly confer
standing on the protected animals, Naruto’s bright-line rule would still
deprive those animals of standing. The
following Subparts will consider several of those statutes in more depth.
1. The Humane Methods of Slaughter Act
The Humane Methods of Slaughter Act[105]
requires that “the slaughtering of livestock and the handling of livestock in
connection with slaughter shall be carried out only by humane methods.”[106] The Act establishes what methods of slaughter
are humane.[107] However, this Act does not explicitly confer
standing on any entity to bring suit to enforce the policies and procedures.[108] Rather, the Food Safety and Inspection
Service (“FSIS”), an agency of the United States Department of Agriculture
(“USDA”), enforces this Act.[109]
Although the Humane Methods of Slaughter Act appears to
confer some rights on the animals it purports to protect,[110]
Naruto precludes those animals from
suing to assert their rights. This lack
of standing is amplified since this Act does not even contain a citizen-suit
provision.[111] The addition of a citizen-suit provision
authorizing persons to sue for enforcement (compared to FSIS enforcing the Act)
would have the potential to create a standing question for animals, depending
on how a court would construe that citizen-suit provision. But the explicit language standard
articulated by Naruto would still
serve as a substantial barrier.
2. The Animal Welfare Act
The Animal Welfare Act[112]
governs the transportation and treatment of animals in research and exhibition.[113] This Act explicitly delegates enforcement to
the Secretary of Agriculture,[114]
which is executed by the USDA and the Animal and Plant Health Inspection
Service (“APHIS”).[115]
This Act protects certain animals used “for research,
testing, experimentation, or exhibition purposes.”[116] But none of those animals may sue under this
Act, thanks to Naruto. The only entity authorized to enforce this
Act is the Secretary of Agriculture; the Act does not contain a citizen-suit
provision.[117] Moreover, if this Act did grant standing to
persons, its definition of “person” would likely not be explicit enough to
confer standing on animals. This Act
defines a “person” as “any individual, partnership, firm, joint stock company,
corporation, association, trust, estate, or other legal entity.”[118] Even this broad, all-inclusive language would
most likely fall short of Naruto’s explicit language requirement.[119]
3. The Marine Mammal Protection Act and the Endangered Species Act
The Marine Mammal Protection Act of 1972[120]
and the Endangered Species Act of 1973[121]
were two of the acts considered in Cetacean
Community.[122] Of course, the court of appeals held that
neither contained the requisite explicit statutory language required to confer
animal standing.[123] Thus, again, the construction of these acts,
which were designed to protect certain animals, demonstrates the lack of
ability for any affected animal to asserts its rights under the acts.
4. Consequences of Lack of Standing in These Statutes
The implications of animals lacking standing under the above
acts may not appear too extreme at first blush.
Yet the main challenge is the very principle of the matter—the very things the acts were intended to protect
cannot sue under the statutes to protect and assert their rights. Of course, the practicalities of animals
suing under these statutes is extremely questionable. How would an animal know it had a right to
sue in the first place? How could it communicate
to assert its rights? How would a court
know whether it was properly understanding the concerns raised by the animal?
Moreover, existing enforcement procedures may be
sufficient. For example, the USDA
regularly brings enforcement actions against establishments that are alleged to
have violated the Humane Methods of Slaughter Act.[124] Additionally, USDA inspectors with APHIS
“conduct routine, unannounced inspections of all facilities licensed or
registered” under the Animal Welfare Act.[125] The USDA may even bring enforcement actions
against facilities that fail to comply.[126] More importantly, APHIS is not wholly
insulated from the public; individuals may report potential violations of the
Animal Welfare Act.[127]
C. The Implications
of Explicit Legislation
New questions would arise if Congress did pass legislation
explicitly conferring standing on animals.
Although such a statute would be compatible with Cetacean Community, the statute would still fail due to lack of
Article III standing according to Naruto. Both Cetacean
Community and Naruto used the
lack of statutory standing to defeat the plaintiffs’ claims. In essence, the panels could fall back on
their bright-line rule on statutory standing.
But would a court’s rationale change if it no longer had that line of
defense? In the face of a statute
explicitly granting standing to animals, would even the Naruto panel still hold that the Article III standing requirement
was met? As discussed above, Congress
may only confer statutory standing, not Article III standing, and both are
required for a meritorious suit.[128]
It is easy for the Naruto
court to speak in footnotes of animals lacking Article III standing when the
stakes are not high (having the lack of statutory standing to fall back
on). But it is a wholly new matter for a
court to be faced with that question as the ultimately dispositive issue. Although the Naruto panel considered the issue foreclosed and easily addressed,
others have presented arguments suggesting that the constitutional standing issue
is not so easily resolved.[129] The Naruto
opinion was arguably written so as to invite en banc review.[130] Thus, even the Naruto panel may have comprehended that an en banc panel or the
Supreme Court might be better suited to consider this question and provide a
clear resolution.
D. Standing for Other
Nonhuman Entities
Another area that the Naruto
decision implicates is the realm of other nonhuman entities that may “author”
certain works that would otherwise qualify for a copyright. This is specifically relevant in the world of
artificial intelligence (“AI”).
Ultimately, the rise of AI poses many of the same questions that Naruto
the monkey did.[131]
Although the Ninth Circuit’s opinion in Naruto only addressed the issue of animal standing, the bright-line
rule it articulated seems much more broadly applicable and could translate into
other spheres. Under a sort of
“transitive property” principle, it could be inferred that unless Congress
explicitly grants standing to AI entities, then the works created by those
entities cannot be “authored” by the AI.[132] The Copyright Office’s Compendium’s standard
would also preclude AI entities from being authors.[133]
E. Implications for
the Copyright Act Specifically
Although Naruto
held that animals do not having standing under the Copyright Act, the opinion
left open one major question: if an animal takes a photo, does anyone have
rights to that photo? Is anyone the
author? Regardless of whether the issue
is animal authorship or authorship by artificial intelligence, Naruto fails to provide any clarity as
to who, if anyone, owns the copyright to a work created by a nonhuman
entity. PETA and Naruto lost their
lawsuit on standing grounds; the question of whether Slater or his company held
the copyright was never even reached.
Even though PETA lost on essentially every front, one
assertion it made may still stand.
Slater may not be the author of the Monkey Selfies; therefore, he cannot
assert any copyright interest in the selfies.[134] This principle is demonstrated in the difficulties
the Wikimedia Foundation encountered with the Monkey Selfies, as many of them
were uploaded to Wikipedia.[135] Wikimedia took the position that copyright
only existed in human authorship; therefore, the selfies were in the public
domain.[136] Although Slater asserted that he held the
copyright and demanded that Wikimedia take the photos down, Wikimedia refused.[137]
Thus, under Naruto
and the U.S. Copyright Office’s official position,[138]
works created by animals are not copyrightable.
Therefore, nothing prevents others from exploiting or using those works
for profit. For example, Slater sold,
and appears to continue to sell, prints of the Monkey Selfie.[139] Additionally, zoos sometimes generate revenue
by selling paintings made by their animals.[140] Profiting off animal creations, especially
when the animal has no possible means of asserting any interest in the work,
raises intriguing ethical questions.[141]
Copyright protection exists primarily to promote creativity
and secondarily to benefit the author.[142] Thus, the question is whether withholding
statutory standing and authorship from animals furthers those purposes. If animals are not even recognized as the
authors of their creations, then there is no recourse to protect those
creations from exploitation. Just as
David Slater continues to sell and profit from photos he himself did not take,
so too can zoos and others sell and profit from created works that do not in
fact belong to them. Does this result
promote creativity? Or does it instead
merely give profiteers the opportunity to benefit from another’s work without
exerting any creative effort themselves?
Granting an animal authorial rights under the Copyright Act,
however, would present substantial practical problems. Animals cannot contract, bargain, or
license. Thus, if the Copyright Act
recognized animals as authors, their created works would become stagnant,
unable to be used by anyone, even if the purpose was to benefit the animals
themselves. Access to and the
opportunity to use others’ created works furthers invention and expression, so
long as the author’s rights are still respected.[143] By granting animals statutory standing and
authorship rights, the law would essentially establish an impenetrable monopoly
in direct contradiction to the goal of creativity.[144] An animal would have the rights to its work,
but there would be no practical mechanism for facilitating a marketplace for
licensing or for others to properly access and use that work, due to the
inevitable communication barrier between humans and animals.
The issue becomes even further complicated in situations
involving other nonhuman entities such as artificial intelligence. With artificial intelligence, there is a
human creator behind the AI. But the
Copyright Office will register a copyright, “provided that the work was created
by a human being.”[145] If a human created the AI software, then it
is possible that the human creator might hold the copyright, even if the AI
cannot.[146]
V. Conclusion
The Monkey Selfie case raises far more questions than
answers. But the questions are
important. Standing is often assumed but
it is the foundation of who has access to the courthouse. The doctrine of standing is the gatekeeper;
standing decides who has rights, for a right without recourse is no right at
all.
As animals and humans become more intertwined, and as AI
becomes more prevalent, the legal questions raised in Naruto will only become more important and pressing. The Ninth Circuit, thanks to the dispute
between the panels in Cetacean Community
and Naruto, has the opportunity with
en banc review to return to this issue and provide clarity and resolution. The consequences of such review could be
immense. The court could articulate an
entirely new rule granting animals statutory standing. Or the court could foreclose the issue
altogether by agreeing with the Naruto
panel that the Constitution itself does not comprehend standing for
animals. The absence of similar cases in
other circuits[147]
suggests that Supreme Court review is currently unlikely. But with the internal split in the Ninth
Circuit and the existing circuit precedent as to Article III standing, the
questions have only just begun.
Naruto’s case ultimately ended with Slater agreeing to donate
25 percent of his future proceeds from use of the selfies to charities
protecting crested macaques’ habitats.[148] But other cases may not end in
settlement. If individuals know that
animals have little chance to assert rights through a lawsuit, that knowledge
may simply serve as an invitation to test the extents of this “immunity.” Thanks to animal protection and anti-cruelty
statutes, animals are not left entirely vulnerable. While animals cannot speak for themselves,
and the legal system may provide inadequate help, Naruto v. Slater tells us that these issues are far from resolved.
[*] Copyright © 2020 Matthew P. Hooker. Juris Doctor Candidate, 2020, Wake Forest University School of Law. B.A., Communications, 2016, Thomas Edison State University. Executive Editor, Wake Forest Law Review. Special thanks to my family (especially Chiedza) for their continued love and support during my academic pursuits.
[1]. This
Selfie May Set a Legal Precedent, People
for Ethical Treatment Animals (Sept. 22, 2015), https://www.peta.org/blog/this-selfie-may-set-a-legal-precedent/.
[2]. Id.
[3]. Id.
[4]. 888 F.3d 418 (9th Cir. 2018).
[5]. Lawsuit
on Behalf of Monkey Tops Poll of Year’s Most Ridiculous Lawsuits, U.S. Chamber Inst. for Legal Reform
(Dec. 21, 2015), https://www.instituteforlegalreform.com/resource/lawsuit-on-behalf-of-monkey-tops-poll-of-years-most-ridiculous-lawsuits.
[6]. Rick Kogan, What We Learn from the Curious Case of the Monkey Selfie, Chi. Trib. (Jan. 26, 2018), https://www.chicagotribune.com/entertainment/ct-ae-monkey-takes-a-selfie-kogan-sidewalks-0128-story.html.
[7]. Andrew Orlowski, Petty PETA Rapped by Judges over Monkey Selfie Copyright Stunt, Register (Apr. 23, 2018, 6:56 PM), https://www.theregister.co.uk/2018/04/23/peta_monkey_selfie_appeal/.
[8]. John Bonazzo, People Are Literally Suing Each Other over the Rights to a Monkey
Selfie, Observer (July 14,
2017, 1:19 PM), https://observer.com/2017/07/monkey-selfie-lawsuit-peta/.
[9]. See
infra Part IV.
[10]. See
infra Subpart IV.E.
[11]. 386 F.3d 1169 (9th Cir. 2004).
[12]. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016).
[13]. See
U.S. Const. art. III, § 2,
cl. 1; see also Spokeo, Inc., 136 S. Ct. at 1547.
[14]. Spokeo,
Inc., 136 S. Ct. at 1547; see also
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180–81 (2000).
[15]. See
City of Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th Cir. 2004).
[16]. Id.
[17]. Id.
[18]. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–77 (1992); Cetacean Cmty. v.
Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (“If a plaintiff lacks Article III
standing, Congress may not confer standing on that plaintiff by statute.”).
[19]. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 109–10 (1998); Fed. R. Civ. P. 12(b)(1); cf. Doe
v. Mckesson, 272 F. Supp. 3d 841, 851–52 (M.D. La. 2017), rev’d on other
grounds, 945 F.3d 818 (5th Cir. 2019) (“Plaintiff therefore is attempting
to sue a hashtag [#BlackLivesMatter] for damages in tort. For reasons
that should be obvious, a hashtag . . . is not a ‘juridical
person’ and therefore . . . is patently incapable of being
sued.”).
[20]. Cetacean Cmty., 386 F.3d 1169 (9th Cir.
2004).
[21]. Id.
at 1176.
[22]. Id.
at 1179.
[23]. 16 U.S.C. §§ 1531–1544 (2018).
[24]. 16 U.S.C. §§ 1371–1421h (2018).
[25]. 42 U.S.C. §§ 4321–4347 (2018).
[26]. Cetacean Cmty., 386 F.3d at 1171–72.
[27]. Id.
at 1176.
[28]. Id.
[29]. Id.
at 1175.
[30]. Id.
at 1179.
[31]. Id.
at 1176–79.
[32]. 16 U.S.C. § 1540(g)(1)(A) (2018).
[33]. Cetacean
Cmty., 386 F.3d at 1178.
[34]. Id.
at 1179 (quoting Citizens to End Animal Suffering & Exploitation, Inc. v.
New Eng. Aquarium, 836 F. Supp. 45, 49 (D. Mass. 1993)).
[35]. Id.
[36]. 852 F.2d 1106 (9th
Cir. 1988).
[37]. Id. at
1107.
[38]. See Cetacean Cmty., 386 F.3d at 1173–74 (“Palila IV’s statements are nonbinding
dicta . . . . In context, our statements in Palila IV were little more than
rhetorical flourishes.”); see also
Hawaiian Crow (‘Alala) v. Lujan, 906 F. Supp. 549, 552 n.2 (D. Haw. 1991); Citizens
to End Animal Suffering & Exploitation, Inc., 836 F. Supp. at 49.
[39]. Cass R. Sunstein, Standing for Animals (with Notes on Animal
Rights), 47 UCLA L. Rev. 1333,
1335 (2000).
[40]. Id. at
1359; accord Naruto v. Slater, 888
F.3d 418, 426 (9th Cir. 2018) (“[I]f an Act of Congress plainly states that
animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state,
then animals do not have statutory standing.”).
Sunstein also stated the rule as being that “[a]s a rule, the question
is therefore quite clear: Animals lack standing as such, simply because no
relevant statute confers a cause of action on animals.” Sunstein, supra
note 39, at 1359.
[41]. See
Sunstein, supra note 39, at 1359.
[42]. Complaint for
Copyright Infringement & Demand for Jury Trial at 1, Naruto v. Slater, No.
15-cv-4324 (N.D. Cal. Sept. 21, 2016), ECF No. 1 [hereinafter Complaint]. As implied by the term selfie, Naruto took
the photos himself. Id.
[43]. Tanya Basu, Monkey Should Get Rights to Famous Selfie,
PETA Says, Time (Sept. 22,
2015), http://time.com/4044452/peta-monkey-selfie-copyright/.
[44]. Id. “The Monkey Selfies resulted from a series of
purposeful and voluntary actions by Naruto, unaided by Slater, resulting in
original works of authorship not by Slater, but by Naruto.” Complaint, supra note 42, at 1.
[45]. Complaint, supra note 42, at 1–2.
[46]. Id. at
1–2.
[47]. Id. at
2.
[48]. Id. at
9–10.
[49]. Notice of Motion
& Motion to Dismiss at 1, Naruto v. Slater, No. 15-cv-4324-WHO (N.D. Cal. Nov.
6, 2015), ECF No. 28.
[50]. Id. at
2–3.
[51]. Id. at
2.
[52]. Id. at
3.
[53]. Id.
[54]. Id. (“Enumerating
the reasons why animals should not be able to sue for copyright infringement
would serve no useful purpose in this motion since controlling Ninth Circuit authority
requires dismissal of this action.”).
[55]. Naruto v. Slater,
No. 15-cv-04324-WHO, 2016 WL 362231, at *4 (N.D. Cal. Jan. 28, 2016).
[56]. Id. at
*2.
[57]. Id. at
*3. “[I]f Congress and the President intended to take the extraordinary step of
authorizing animals as well as people and legal entities to sue, they could,
and should, have said so plainly.”
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004) (quoting
Citizens to End Animal Suffering & Exploitation, Inc. v. New Eng. Aquarium,
836 F. Supp. 45, 49 (D. Mass. 1993)).
[58]. Naruto,
2016 WL 362231, at *3.
[59]. Id. at
*4 (citing U.S. Copyright Office, Compendium of U.S. Copyright Office Practices
§§ 306, 313.2 (3d ed. 2017) [hereinafter Compendium]).
[60]. Opening Brief of
Plaintiff–Appellant at 1, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No.
16-15469).
[61]. Id. at
5–6.
[62]. Id. at
10.
[63]. Id. at
12–13.
[64]. Id. at
15.
[65]. Id. at
16.
[66]. Id.
(quoting Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006)).
[67]. Id. at
17.
[68]. Brief of Defendants-Appellees David John
Slater and Wildlife Personalities, Ltd. at 5, Naruto v. Slater, 888 F.3d 418
(9th Cir. 2018) (No. 16-15469) [hereinafter Answer Brief] (quoting Cetacean
Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004)).
[69]. Id. at 6 (citing Cetacean Cmty., 386
F.3d at 1176–79).
[70]. Id.
[71]. Cetacean
Cmty., 386 F.3d at 1178.
[72]. Answer Brief, supra note 68, at 7.
[73]. Id.
at 9. Although the Ninth Circuit’s
opinion agreed with Slater on this issue, the next friend issue is beyond the
scope of this Article, since the Ninth Circuit proceeded to consider Naruto’s
standing under Article III and the Copyright Act independent of any next
friend. See Naruto, 888 F.3d at
422 (holding that “Naruto’s lack of a next friend does not destroy his standing
to sue, as having a ‘case or controversy’ under Article III of the Constitution”).
Judge Smith would have held that the Court’s conclusion as to the next friend
issue deprived the Court of jurisdiction, so considering Naruto’s independent
Article III and statutory standing were inappropriate. See
id. at 427 (Smith. J., concurring in
part). Although the question of whether
next-friend standing is nonjurisdictional is intriguing, exploration of this
question deserves its own article.
[74]. See
ECF Nos. 45–46, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469).
[75]. Joint Motion to Dismiss Appeal and Vacate the
Judgment at 1, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469).
[76]. Id.
at 3–4.
[77]. Order at 1, Naruto v. Slater, 888 F.3d 418
(9th Cir. 2018) (No. 16-15469), ECF No. 59.
[78]. Id. at 2.
[79]. See
Naruto, 888 F.3d at 418, 420.
[80]. Id.
at 421.
[81]. See
id. at 423.
[82]. Id.
at 424–25; Cetacean Cmty. v. Bush, 386 F.3d 1169, 1176 (9th Cir. 2004) (“[W]e
see no reason why Article III prevents Congress from authorizing a suit in the
name of an animal, any more than it prevents suits brought in the name of
artificial persons such as corporations, partnerships or trusts, and even
ships, or of juridically incompetent persons such as infants, juveniles, and
mental incompetents.”).
[83]. Naruto,
888 F.3d at 425 n.7.
[84]. Id.
(emphasis added by the Naruto court) (internal quotation marks omitted)
(quoting Cetacean Cmty., 386 F.3d at
1179).
[85]. Id.
at 426.
[86]. Id.
[87]. Id.
[88]. Id.
at 426 n.9 (citing Citizens United v. FEC, 558 U.S. 310, 341–42 (2010); Burwell
v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 (2014)). The court also pointed out that such
organizations are organized by humans, not animals. Naruto, 888 F.3d at 426 n.9.).
[89]. Naruto,
888 F.3d at 426.
[90]. See
17 U.S.C. §§ 101, 201, 203, 304 (2018).
[91]. See
17 U.S.C. § 203(a)(2)(A) (2018).
[92]. Naruto,
888 F.3d at 426.
[93]. See,
e.g., 1 Howard B. Abrams & Tyler
T. Ochoa, The Law of Copyright
§ 4:1 n.10 (2018); 1 Katheryn A.
Andersen, Law and Business of
Computer Software § 2:3 n.1 (2d ed. 2018); 1 Alexander Lindey & Michael Landau, Lindey on Entertainment, Publishing and the
Arts § 1:10.50 (3d ed. 2018); 6 William
F. Patry, Patry on Copyright
§ 21:7 n.13 (2018); Ralph D. Clifford, Creativity
Revisited, 59 IDEA: L. Rev. Franklin
Pierce Ctr. for Intell. Prop. 25, 27 n.9 (2018).
[94]. Naruto,
888 F.3d at 425 n.7.
[95]. Id.
[96]. Id.
[97]. Id.
[98]. Id.
[99]. See
id. at 421; see also Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en
banc) (noting that the proposition that “a three-judge panel may not overrule a
prior decision of the court” is “unassailable so far as it goes”).
[100]. See
Order at 1, Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (No. 16-15469), ECF
No. 74. The parties did not request an
en banc hearing, but one of the judges requested a vote sua sponte. See id.
[101]. See
Naruto, 888 F.3d at 425 n.7.
[102]. See
supra notes 39–41 and accompanying
text.
[103]. Sunstein, supra
note 39, at 1359; accord Naruto, 888 F.3d at 426 (“[I]f an Act of Congress plainly states
that animals have statutory standing, then animals have statutory standing. If
the statute does not so plainly state, then animals do not have statutory
standing.”). Sunstein also restated the
rule thus: “[a]s a rule, the question is therefore quite clear: Animals lack
standing as such, simply because no relevant statute confers a cause of action
on animals.” Sunstein, supra note 39, at 1359.
[104]. See,
e.g., 7 U.S.C. §§ 1901–1907 (2018); Animal Welfare Act, 7 U.S.C. §§
2131–2159 (2018); Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361–1407
(2018); Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2018).
[105]. 7 U.S.C. § 1901.
[106]. Id.
[107]. 7 U.S.C. § 1902.
[108]. See
7 U.S.C. §§ 1901–1907.
[109]. See
9 C.F.R. §§ 300.1, 313.1 (2019).
[110]. See
7 U.S.C. § 1901.
[111]. See
7 U.S.C. §§ 1901–1907.
[112]. 7 U.S.C. §§ 2131–2159 (2018).
[113]. 7 U.S.C. § 2131.
[114]. 7 U.S.C. § 2146.
[115]. See
About APHIS, U.S. Dep’t Agric., Animal & Plant Health Inspection Serv.,
https://www.aphis.usda.gov/aphis/banner/aboutaphis
(last modified Dec. 4, 2019).
[116]. 7 U.S.C. § 2132(g).
[117]. See
generally 7 U.S.C. §§ 2146, 2159.
[118]. 7 U.S.C. § 2132(a).
[119]. See Naruto v. Slater, 888 F.3d 418,
420–22 (9th Cir. 2018); cf. Nonhuman Rights Project, Inc. v. R.W.
Commerford and Sons, Inc., 216 A.3d 839, 844–46 (Conn. App. Ct. 2019) (dismissing
habeas corpus case on behalf of an elephant because an elephant is not a
person).
[120]. 16 U.S.C. §§ 1361–1407 (2018).
[121]. 16 U.S.C. §§ 1531–1544 (2018).
[122]. See
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1171 (9th Cir. 2004).
[123]. Id.
at 1177–78.
[124]. See Humane
Handling Enforcement Actions, U.S.
Dep’t Agric., Food Safety & Inspection Serv., https://www.fsis.usda.gov/wps/portal/fsis/topics/
regulatory-compliance/regulatory-enforcement/humane-handling-enforcement-actions/humane-handling-enforcement-actions
(last modified Jan. 13, 2020).
[125]. Animal
Welfare Act, U.S. Dep’t Agric.,
Animal & Plant Health Inspection Serv., https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/
sa_awa/ct_awa_program_information (last modified Sept. 13, 2019).
[126]. Id.
[127]. Animal
Welfare Complaint, U.S. Dep’t Agric.,
Animal & Plant Health Inspection Serv., https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/
complaint-form (last visited Feb. 2, 2020).
[128]. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–77 (1992); Cetacean Cmty., 386 F.3d at 1174 (“If a
plaintiff lacks Article III standing, Congress may not confer standing on that
plaintiff by statute.”).
[129]. See,
e.g., Relators’ Reply Brief at 8–9, State ex rel. Twitchell v. Saferin, 119 N.E.3d 365 (Ohio 2018) (No.
2018-1238); Symposium, Legal Standing for
Animals and Advocates, 13 Animal L.
61, 63–65 (2006).
[130]. See
Naruto v. Slater, 888 F.3d 418, 421, 423 n.5 (9th Cir. 2018).
[131]. See
Paul T. Babie, The “Monkey Selfies”:
Reflections on Copyright in Photographs of Animals, 52 U.C. Davis L. Rev. Online 103, 116
(2018) (“Today, we live in a world in which the future development of
Artificial Intelligence (‘AI’) presents the same challenges of classification
canvassed in Naruto: can an artificial
consciousness or intelligence constitute a legal personality?”).
[132]. See
Andersen, supra note 93, § 2:3 (“Although advancements in artificial
intelligence continue to expand the capacity of robots and computers to design
and ‘create’ works using new algorithmic models and processes, only works
traceable to a human author are eligible for copyright protection.”).
[133]. See
Compendium, supra note 59,
§ 313.2 (“Similarly, the Office will not register works produced by a machine
or mere mechanical process that operates randomly or automatically without any
creative input or intervention from a human author.”).
[134]. See
Complaint, supra note 42, at 1 (“The
Monkey Selfies resulted from a series of purposeful and voluntary actions by
Naruto, unaided by Slater, resulting in original works of authorship not by
Slater, but by Naruto.”); see also 17
U.S.C. § 102(a) (2018) (emphasis added) (granting copyright protection only to “original
works of authorship”).
[135]. See
Mailbag: What is Going on with Wikipedia
and the Monkey Selfie? We Love Monkeys and Photographers, Let Us Tell You More,
Wikimedia Found. (Dec. 22, 2017), https://blog.wikimedia.org/2017/12/22/monkey-selfie/.
[136]. See
id. (“Because a monkey took the
photos, and a monkey cannot claim copyright, those photos are considered to be
in the public domain and freely shareable on Wikimedia projects.”).
[137]. See
id.
[138]. See
Compendium, supra note 59,
§ 313.2 (“The Office will not register works produced by nature, animals, or
plants.”).
[139]. See
The Monkey Selfie by David J. Slater,
DJS Photography, http://www.djsphotography.co.uk/monkeyselfie.htm
(last visited Jan. 31, 2020). The cover
of Slater’s book, Wildlife Personalities,
also contains the iconic selfie. See id.
[140]. See
Jane Desmond, Zoos Make Money Selling
Paintings Made by Animals. Are They Art?, Wash.
Post (Sept. 7, 2016, 8:00 AM), https://www.washingtonpost.com/news/animalia/wp/2016/09/07/zoos-make-money-selling-paintings-made-by-animals-are-they-art/;
cf. Kate Good, Elephant Artists? Here’s Why Making an Elephant Paint is Cruel, Not
Cute, OneGreenPlanet, http://www.onegreenplanet.org/animalsandnature/why-making-an-elephant-paint-is-cruel-not-cute/
(last visited Jan. 31, 2020) (discussing “elephant tourism” and how elephants
are taught to paint).
[141]. See
Rain Embuscado, Paintings by ‘Animal
Artists in Residence’ at San Francisco Zoo Head to Auction, ArtNet (Apr. 25, 2016), https://news.artnet.com/market/sf-zoo-animals-art-auction-480998.
[142]. See
U.S. Const. art. I, § 8, cl. 8 (“The
Congress shall have Power . . . to promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries . . . .”);
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991)
(internal citations omitted) (“The primary objective of copyright is not to
reward the labor of authors, but ‘[t]o promote the Progress of Science and
useful Arts.’ . . . [C]opyright assures authors the right
to their original expression, but encourages others to build freely upon the
ideas and information conveyed by a work.”); Zechariah Chafee, Jr., Reflections on the Law of Copyright: I,
45 Colum. L. Rev. 503, 506 (1945).
[143]. See
Chafee, supra note 142, at 511 (“Nobody
else should market the author’s book,
but we refuse to say nobody else should use
it. The world goes ahead because each of
us builds on the work of our predecessors.”).
[144]. See
id.
[145]. Compendium,
supra note 59, § 306.
[146]. See
Stuart N. Brotman, The Human Importance
of the Monkey Selfie, Brookings
Inst.: TechTank (Aug. 12, 2014), https://www.brookings.edu/blog/techtank/2014/08/12/the-human-importance-of-the-monkey-selfie/. How much human involvement is sufficient is
another open question. For example, PETA
did not consider Slater’s involvement in providing the camera to be enough to
give him rights to Naruto’s selfies. See
Complaint, supra note 42, at 1 (“The
Monkey Selfies resulted from a series of purposeful and voluntary actions by
Naruto, unaided by Slater . . . .”
(emphasis added)).
[147]. See
Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018).
[148]. PETA
Statement: ‘Monkey Selfie’ Case Settled, People
for Ethical Treatment Animals (Sept. 11, 2017), https://www.peta.org/media/news-releases/peta-statement-monkey-selfie-case-settled/.
