Monkey See, Monkey Sue: Monkeys Can Bring Lawsuits, 9th Circuit Says

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Kevin Daley Supreme Court correspondent
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A three-judge panel of the 9th U.S. Circuit Court of Appeals Monday found an ape satisfies the criteria for standing to bring a lawsuit under Article III of the Constitution.

Though the panel concluded the case could not proceed because apes do not have standing under the federal law at issue, it did acknowledge they meet basic requirements for standing set out by the Constitution.

The case was occasioned in 2011 when a wildlife photographer named David Slater left his camera on a nature reserve in Indonesia. The camera was recovered by a crested macaque named Naruto, a black ape native to isolated corners of the south Pacific. The ape took selfies with the camera, which Slater eventually reclaimed. Thereafter, he licensed the photos to several British media publications and published a volume of “monkey selfies” on a digital platform.

In turn, People for the Ethical Treatment of Animals (PETA) and a primatologist named Dr. Antje Engelhardt sued Slater for copyright infringement, arguing the selfies were the lawful property of the ape.

A federal judge in San Francisco dismissed the case, prompting an appeal to the 9th Circuit.

Judge Carlos Bea, a George W. Bush appointee, wrote Monday’s decision for a three-judge panel. Bea cited a 2004 9th Circuit decision called Cetacean Community v. Bush, in which the court suggested whales, porpoises, and dolphins could sue the U.S. Navy for damage inflicted by sonar technology. The suit was not allowed to proceed, however, as the relevant environmental laws did not extend standing to animals.

Monday’s decision followed a similar trajectory. The court agreed that apes satisfied the requirements of standing under the Constitution: the ape suffered a tangible injury directly traceable to Slater’s actions. But as in the Cetacean case, the Copyright Act makes no reference to animal standing, warranting the case’s dismissal.

“The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute,” the decision reads.”Therefore, based on this court’s precedent in Cetacean, Naruto lacks statutory standing to sue under the Copyright Act.”

PETA argued the Act may well grant standing to animals, because it extends standing to other non-human entities like corporations and associations. The 9th Circuit rejected that contention, noting the U.S. Supreme Court considers corporations persons for purposes of standing, while the Cetacean case requires Congress to explicitly grant standing to animals.

Slater and PETA settled the dispute in Sept. 2017. Slater agreed to pay out one-quarter of future revenue generated from the photos to various charities that protect the habitat of the black macaque. The 9th Circuit decided a decision should still be issued to provide another authority for the growing body of animal rights law.

The panel detected ulterior motives on PETA’s part in the settlement.

“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,” a footnote to the decision reads. “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,’ PETA seems to employ Naruto as an unwitting pawn in its ideological goals,” it adds.

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