You might want to sit down for what I am about to write: According to the Ninth Circuit, monkeys cannot sue humans for copyright infringement. Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).
A “copyright” protects printed work (photos, books, etc.). Even though monkeys have opposable thumbs and can, arguably, create printed work capable of being copyrighted, they can’t sue humans for copyright infringement. Id. at 426.
TECHNICALLY, ANIMALS MIGHT BE ABLE TO SUE HUMANS
In 2004, the Ninth Circuit issued the opinion Cetacean Community v. Bush, 386 F.3d 1169, and has regretted it ever since.
In Cetacean, an attorney appointed himself to represent “all of the world’s whales, porpoises, dolphins (the “Cetaceans”)” for injuries they allegedly sustained from the Navy’s sonar systems. Id. at 1171. To sue anyone in federal court, you need what we call “Article III” standing. “Article III” standing comes from the United States Constitution, and requires you to prove that you have actually been injured, either physically, or by having some judicially recognizable right impaired. Because the Cetaceans were, maybe, actually physically injured by sonar systems, the Ninth Circuit reluctantly agreed that these poor dolphins might have Article III standing. But they still couldn’t sue humans under the statutory scheme their claims were brought under. Id.
ENTER NARUTO, A TALENTED PHOTOGRAPHER WHO HAPPENS TO BE A MONKEY
Naruto is monkey who (probably) still lives on a reserve in Indonesia. He became famous for taking “selfies” of himself on a camera that a wildlife photographer, David Slater, left unattended. Slater published the Monkey Selfies in a book.
So, obviously, PETA sued Slater.
PETA sued Slater for copyright infringement since Slater admitted that Naruto took the photos. PETA brought the lawsuit as a “next friend” of Naruto’s, which is fancy legal term for someone who asserts another’s legal rights for them because they cannot assert the rights themselves. See Coalition of Clergy v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002).
NINTH CIRCUIT TO NARUTO: “PETA IS NOT YOUR FRIEND”
The Ninth Circuit immediately rejected PETA’s attempt to stand as “next friend” to Naruto. A “next friend” has to show the existence of some “significant relationship” between the two. Naruto, 888 F.3d at 421. PETA failed to show that it had even met Naruto, and, even if could have, there is no statute which allows “next friends” to represent animals in federal court. Id. at 422-23.
But PETA’s failure as a “friend” does not end there. The Ninth Circuit was not amused by PETA’s attempt to “settle” the case without dismissing Naruto’s claims but still requiring Slater pay a portion of the proceeds from his book to miscellaneous charities:
But now, 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. 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,’ see PETA, https://peta.org . . . PETA seems to employ Naruto as an unwitting pawn in its ideological goals.
Id. at 421, n.3.
The concurring opinion by Judge Smith further elaborated on the issues inherent with “next friend” representation of animals. As Judge Smith notes, this would allow various parties “to bring suit on behalf of those animals or objects with no means or manner to ensure that the animals’ interests are truly being expressed or advanced.” Animals do not speak our language; therefore, how can a “next friend” truly know “whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.” Id. at 432.
Even more alarming is the natural consequence of allowing animals to sue: If they can hold humans accountable for civil wrongs, can we hold them accountable for other civil infractions? “Are animals capable of shouldering the burden of paying taxes? . . . Should animals be liable for intentional torts as well?” Id. at 432, n.6.
AND, JUST TO BE CLEAR, MONKEYS CANNOT SUE HUMANS FOR COPYRIGHT INFRINGEMENT
Having disposed of PETA and its “next friend” status, the Ninth Circuit tackled the next possible approach a self-serving animal “friend” could take: Self-appointing themselves as the lawyer and representing Naruto directly as the “client.” This is what happened in Cetaceans. The dolphins did not have a “next friend.” They just had some attorney with too much time on his hands.
Federal jurisdiction is limited, which means that federal courts only get to hear the specific cases from the specific plaintiffs that Congress specifically allows them to consider in a statute. So, the Ninth Circuit looked to the Copyright Act to see if monkeys can use humans.
Shockingly, Congress has not specifically stated that monkeys can sue humans for copyright infringement. (I KNOW. What’s the point of opposable thumbs if you can’t protect what you create with them?!).
Therefore, the Ninth Circuit held that monkeys can’t sue humans for copyright infringement. Id. at 425-26.
WHAT YOU NEED TO REMEMBER ABOUT THIS CASE.
Nothing. This case will probably never have any relevancy to your life, unless you have a habit of encountering litigious wildlife.
However, the Ninth Circuit is desperately hoping that someone, somewhere, will take the issue of animal standing to sue humans up to the Supreme Court so that they can finally stop having to admit that, yes, they issued Cetaceans, yes, the “plaintiff” was every whale and dolphin in the entire world, and yes, maybe they did, sort of, somewhat say that every whale and dolphin has Article III standing to possibly sue a human.