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

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 regardgo far beyond its failure to plead a significant relationship with Naruto.Indeed, if any such relationship exists, PETA appears to have failed to liveup to the title of "friend." After seeing the proverbial writing on the wallat oral argument, PETA and Appellees filed a motion asking this court todismiss Naruto's appeal and to vacate the district court's adversejudgment, representing that PETA's claims against Slater had been settled.It remains unclear what claims PETA purported to be "settling," since thecourt was under the impression this lawsuit was about Naruto's claims, and per PETA's motion, Naruto was "not a party to the settlement," norwere Naruto's claims settled therein. Nevertheless, PETA apparentlyobtained something fromthe settlement with Slater, although not anythingthat would necessarily go to Naruto: As "part of the arrangement," Slateragreed to pay a quarter of his earnings from the monkey selfie book "tocharities that protect the habitat of Naruto and other crested macaques inIndonesia." See Settlement Reached: 'Monkey Selfie' Case Broke NewGroundForAnimal Rights, PETA, https://www.peta.org/blog/settlementreached-monkey-selfie-case-broke-new-ground-animal-rights/ (lastvisited Apr. 5, 2018). But now, in the wake of PETA's proposeddismissal, Naruto is left without an advocate, his supposed "friend" havingabandoned Naruto's substantive claims in what appears to be an effort toprevent the publication of a decision adverse to PETA's institutionalinterests. Were he capable of recognizing this abandonment, we wonderwhether Naruto might initiate an action for breach of confidentialrelationship against his (former) next friend, PETA, for its failure topursue his interests before its own. Puzzlingly, while representing to theworld that "animals are not ours to eat, wear, experiment on, use forentertainment, or abuse in any other way," see PETA, https://peta.org (lastvisited Apr. 5, 2018), PETA seems to employ Naruto as an unwittingpawn in its ideological goals. Yet this is precisely what is to be avoidedby requiring next friends to have a significant relationship with, ratherthan an institutional interest in, the incompetent party-a point made byChiefJustice 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 usagainst the conclusion that animals have statutory standing tosue under the Copyright Act. See Davis v. Mich. Dep't ofTreasury, 489 U.S. 803, 809 (1989) ("It is a fundamentalcanon of statutory construction that the words of a statutemust be read in their context and with a view to their place inthe overall statutory scheme."). For example, the "children"of an "author," "whether legitimate or not," can inheritcertain rights under the Copyright Act. See 17 U.S.C. 101,201, 203, 304. Also, an author's "widow or widower ownsthe author's entire termination interest unless there are anysurviving children or grandchildren of the author, in whichcase the widow or widower owns one-half of the author'sinterest." Id. 203(a)(2)(A). The terms "children,""grandchildren," "legitimate," "widow," and "widower" allimply humanity and necessarily exclude animals that do notmarry 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 inconcluding that Naruto-and, more broadly, animals otherthan humans-lack statutory standing to sue under theCopyright 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.