Last week, a panel of the US Court of Appeals for the Ninth Circuit affirmed a ruling by a federal district judge rejecting an effort by People for the Ethical Treatment of Animals (PETA) to bring a copyright lawsuit on behalf of Naruto, a crested macaque. The result in Naruto v. Slater is hardly surprising, but the court’s reasoning raises important questions about the role of lawsuits and law more generally in furthering the interests of nonhuman animals.
A Monkey Photographer
Wildlife photographer David Slater left an unattended camera in an Indonesian nature preserve. Naruto came across the camera and snapped a few selfies. Slater later included Naruto’s selfies in a book, crediting the monkey photographer for the work. Credit is one thing, but payment is another. Slater and his publisher did not initially offer to pay Naruto a royalty for the use of the photographs, so PETA sued on Naruto’s behalf, arguing that under the Copyright Act he is their owner and thus entitled to a licensing fee. Recognizing that a macaque living in the wild has little direct use for money, PETA proposed to use the proceeds for projects that would benefit Naruto and other crested macaques in Indonesia.
PETA and Naruto lost in the district court. A 2004 Ninth Circuit case involving whales, porpoises, and dolphins allowed that the Constitution’s Article III does not stand as a categorical bar to federal court lawsuits by nonhuman animal plaintiffs. Nonetheless, the district judge ruled that the Copyright Act does not allow damages actions by such plaintiffs. In last week’s ruling, the panel unanimously agreed with that result, although the judges split on one aspect of their rationale.
The case involved three main issues. First was the Article III standing question. All three appeals court judges said they thought that the Article III ruling in the whale-porpoise-and-dolphin case was wrong. However, in the Ninth as in other circuits, one three-judge panel may not overrule another. Only an en banc or Supreme Court ruling can overrule a panel holding. Therefore, while the appeals court judges in Naruto urged the re-examination of the determination that nonhuman animals can have Article III standing in some future en banc or Supreme Court case, they accepted it for purposes of deciding the case before them.
Next came the question whether PETA had so-called “next friend” standing to represent Naruto. A party who cannot competently represent himself may be represented by someone, in addition to a lawyer, who sues on the party’s behalf. As an organization that aims to protect the interests of nonhuman animals, PETA sought to represent Naruto in that way. The court found PETA an improper representative, because PETA lacked any substantial relationship with Naruto. Moreover, the judges thought that even if PETA had a sufficient relationship with Naruto, a nonhuman animal was not eligible to be represented by a human or an organization of humans—at least not in the absence of legislation by Congress authorizing such representation.
The judges disagreed on a technical point about the consequences of the next-friend holding. For the majority, Judge Bea wrote that while PETA was an improper next friend of Naruto, the macaque had received vigorous legal representation. Thus, the majority thought that it could reach the merits of—and reject—Naruto’s copyright claim. By contrast, in a concurrence, Judge Smith thought that once next-friend status for PETA was rejected, the case ought to have been dismissed for lack of jurisdiction.
Whether rejection of next-friend status results in a jurisdictional dismissal or a merits dismissal poses a question that may be important in future cases, but it played no decisive role in Naruto’s case, because all three judges agreed that he lacked any rights under the Copyright Act. Although the Act does not expressly state that it protects only humans, both the majority and the concurrence noted that various provisions and longstanding practice indicated that Congress would not have wanted to allow copyright actions by nonhuman animals.
The third issue was whether the Copyright Act gives monkeys or other nonhuman animals what the court somewhat confusingly called “statutory standing.” That was just another way of asking whether Naruto, as a monkey, had a substantive claim as the owner of a copyright. The majority said he did not. Because Judge Smith thought the case should be decided on jurisdictional grounds, he did not need to reach the substantive copyright question, but he made clear that he too thought that nonhuman animals lack rights under the Copyright Act or to own property more generally.
Bottom line: Naruto lost quite resoundingly.
Can Congress Authorize Lawsuits by Nonhuman Animals?
Yet that may not be the end of the matter. Lurking in the background in Naruto is the question of the congressional role. The appeals court panel is almost certainly correct that Congress did not intend for monkeys to be able to sue to enforce copyrights. But suppose Congress were to change its mind. Could a monkey, an orca, or a chimpanzee sue to enforce statutory rights if Congress made clear that such rights extended to nonhumans?
At one point, the Naruto court appears to say yes. The majority says: “if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing.” Yet that language appears in a part of the opinion that characterizes the whale-porpoise-and-dolphin case, which all of the judges in Naruto think was wrongly decided. That means that all of the judges on the Naruto panel think that allowing a monkey or other nonhuman animal to sue in federal court would violate the Constitution’s Article III. And a statute cannot override the Constitution.
Except that maybe it can in this context. In a key 1992 standing case—which also happened to involve protection for the interests of nonhuman animals—Justice Kennedy wrote a concurrence in which he suggested that in some circumstances a federal statute may confer constitutionally adequate standing—a “case” or “controversy” in the language of Article III—where, in the absence of such a statute there would be none. “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before,” he wrote. Although a mere concurrence is not generally binding, this one is because the majority opinion in a 2007 Supreme Court case involving global warming treated the Kennedy concurrence as such.
To be sure, the exact scope of congressional power to create legal standing under the Constitution remains unclear. And Justice Kennedy was talking about the expansion of standing to cover additional kinds of disputes, not to cover beings who, absent congressional action, would lack standing. Still, there is reason to think that Congress ought to be able to extend Article III standing to cover injuries to nonhuman animals. An analogy explains why.
Suppose that you run a business as a sole proprietorship. Even without any action by Congress, Article III poses no bar to your suing or being sued on behalf of your business. But the business itself cannot sue or be sued unless some law provides for its legal personality, often as a corporation. Typically, either the law itself or a provision of the corporate charter in conformity with the law will contain a sue-or-be-sued clause. Thus, the analogy goes, just as the law can confer on corporations legal personhood including the power to sue and be sued in federal court, so it can confer such capacities on nonhuman animals.
Tactical Questions for Animal Advocates
Whether advocates for animals should pursue legislation seeking a right to sue is a different question. At this point, there is no realistic prospect that Congress would enact such legislation. Indeed, at this point it is not even clear how advocates for nonhuman animals should resolve the tactical question whether to bring lawsuits. The PETA lawsuit on behalf of Naruto arguably trivializes the plight of animals PETA purports to care about.
In order to create products for which there exist ready substitutes, human beings grossly mistreat and slaughter billions of mammals, birds, and fishes with emotional lives and capacities to suffer quite similar to the capacities of macaques and, for that matter, humans. Animal agriculture harms the animals that humans breed, exploit, and kill for food and fiber, but it also harms free-living species like macaques, because animal agriculture encroaches on habitat. Each calorie of animal food requires the wasteful use of land and water to grow many more calories worth of plant food, which, if consumed directly by humans, could feed us at much lower ecological cost.
In the context of the grotesque harm that the law allows humans to inflict on numerous animals, there is something profoundly misguided—even perverse—about suing for the copyright royalties from a monkey selfie. Given PETA’s tendency to engage in (frequently misogynistic) publicity stunts, one cannot help but think that the point of the Naruto lawsuit—like the point of much PETA activity—was to call attention to PETA rather than to the plight of crested macaques and members of other free-living species whose habitat is threatened.
That said, it is possible to imagine litigation by pro-animal organizations that does serve a broader purpose. For example, the Nonhuman Rights Project has brought state habeas corpus actions on behalf of captive chimpanzees and elephants. Although these cases have thus far failed in court, they could win in the court of public opinion by bringing sympathetic attention to the losing plaintiffs.
Viewing PETA’s actions in the monkey selfie case charitably, perhaps that was also the goal of the lawyers who filed suit on Naruto’s behalf. Put differently, “publicity stunt” need not necessarily be a term of opprobrium. After all, PETA does some good. Its informational materials on why and how to go vegan are excellent. If, as a result of the publicity surrounding Naruto’s case, some people end up on PETA’s website, come across those materials, and then change their consumption choices, the quixotic monkey selfie case will not end up a total loss.