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This Just In: Monkeys Cannot Sue Humans

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.

 

Wait, Writ What? A Crash Course in Appellate Writs

A writ petition is, basically, an early appeal.  Attorneys love to file writ petitions while the case is still going because, in their mind, they don’t have to wait until the bitter end to prove the judge wrong.  Unfortunately, you cannot take anything and everything up on a writ.   Understanding how and when writ relief is appropriate will save you time and your clients money.

WHO CAN FILE A WRIT PETITION

Any party to the proceeding can file a writ petition.  Writ relief is also available to non-parties.  Only parties to the litigation have the right to appeal.  See NRAP 3A.  Thus, writ relief is the only avenue of appellate review for non-parties aggrieved by orders.

Writ relief is the only appellate remedy for attorneys who wish to challenge (1) orders disqualifying counsel, Nev. Yellow Cab Corp. v. Eighth Jud. Dist. Ct., 123 Nev. 44, 49, 152 P.3d 737, 740 (2007), and (2) orders issuing sanctions. Watson Rounds v. Eight Jud. Dist. Ct., 131 Nev., Adv. Op. 79, 358 P.3d 228, 231 (Nev. 2015).  Although they represent parties, an attorney is not a “party” to the litigation who can appeal these orders.  Emerson v. Eighth Judicial Dist. Ct., 127 Nev. 672, 676, 263 P.3d 224, 227 (2011).

Writ relief is also the appropriate remedy for disqualification or peremptory challenges to judges.  See Ivey v. Dist. Ct., 129 Nev. 154, 159, 299 P.3d 354, 357 (2013); Morrow v. Dist. Ct., 129 Nev. 110, 112, 294 P.3d 411, 413 (2013).

For other non-parties, writ relief is the appropriate appellate remedy for orders compelling non-party witnesses to appear and/or participate at trial or in discovery, Quinn v. Eighth Jud. Dist. Ct., 134 Nev., Adv. Op. 5, 410 P.3d 984, 987 (Nev. 2018), and denial of a motion to intervene.  Hairr v. First Jud. Dist. Ct., 132 Nev., Adv. Op. 16, 368 P.3d 1198, 1200 (Nev. 2016).

WHAT TYPE OF WRIT PETITION YOU SHOULD FILE.   

There are two main types of writ petitions available to civil practitioners:  (1) mandamus; and (2) prohibition.  A writ of mandamus is used to order the district court judge to do something.  Aspen Fin. Servs., Inc. v. Eighth Jud. Dist. Ct., 129 Nev. 878, 881, 313 P.3d 875, 877 (2013); see also NRS 34.160.   In contrast to mandamus, a writ of prohibition seeks to prevent the district court from doing something.   Sandpointe Apartments v. Eighth Jud. Dist. Ct., 129 Nev. 813, 817, 313 P.3d 849, 852 (2013); see also NRS 34.320.

You should file a writ of mandamus for the following:

(1)  Challenges to the district court’s discretion in imposing sanctions on a party.  City of Sparks v. Second Judicial Dist. Ct., 112 Nev. 952, 953 n.1, 920 P.2d 1014, 1015 n.1 (1996)

(2)  Issues of law that need clarification (from any form of order – dismissal, summary judgment, etc.).  Paley v. Second Judicial Dist. Ct., 129 Nev. 701, 703, 310 P.3d 590, 592 (2013).

(3) A district court’s refusal to exercise jurisdiction over a party, or the subject matter of the litigation.  Amezcua v. Eighth Judicial Dist. Court of State ex rel. Cnty. of Clark, 130 Nev., Adv. Op. 7, 319 P.3d 602, 603 (2014); State, Through Miller v. Eighth Judicial Dist. Court In & For Clark Cnty., 97 Nev. 34, 35, 623 P.2d 976 (1981).  Mandamus is particularly appropriate for orders quashing service of process.  Jarstad v. Nat’l Farmers Union Prop. & Cas. Co., 92 Nev. 380, 383-84, 552 P.2d 49, 51 (1976).

You should file a writ of prohibition for the following

(1)  Orders requiring improper discovery. Quinn, 134 Nev. at ___, 410 P.3d at 987 (Nev. 2018).  Writs of prohibition are the favored procedural vehicle “to correct an order that compels disclosure of privileged information.”  Wynn Resorts, Ltd. v. Eighth Jud. Dist. Ct., 399 P.3d 334, 341 (Nev. 2017).

(2) Orders denying motions to quash service of process, or involving the exercise of jurisdiction which the district court lacks. Grupo Famsa v. Eighth Jud. Dist. Ct., 132 Nev., Adv. Op. 29, 371 P.3d 1048, 1050 (Nev. 2016).

WHEN YOU SHOULD FILE YOUR PETITION. 

A writ petition can be filed at any time, and there is no specific time by which one must be filed.  See NRAP 21.  This does not, however, mean that you can sit on your writ forever.  “Writ relief is subject to laches.”  State v. Eighth Judicial Dist. Ct. (Anzalone), 118 Nev. 140, 147-48, 42 P.3d 233, 238 (2002).  Laches bars writ relief if (1) “there was an inexcusable delay in seeking the petition,” (2) “an implied waiver arose from the petitioner’s knowing acquiescence in existing conditions,” and (3) the delay prejudiced the respondent.  Id. at 148, 42 P.3d at 238. A petitioner who is aware of their right to bring a writ petition and who offers no convincing explanation for their delay in doing so has inexcusably delayed seeking writ relief.  Bldg. & Constr. Trades Council of N. Nev. v. State, 108 Nev. 605, 611, 836 P.2d 633, 637 (1992).

WHERE YOU FILE YOUR PETITION. 

All writ petitions are initially filed with the Nevada Supreme Court.  See NRAP 21.  The petition can be heard by either the Nevada Supreme Court or the Nevada Court of Appeals.  You must include an NRAP 17 statement in the petition that identifies the court to which the issues should be directed.

WHY YOUR WRIT PETITION MAY BE GRANTED OR DENIED.

Writ relief is not a guarantee.  Writ relief is viewed as an “extraordinary remedy” that is only available if your alleged injury cannot be rectified by a subsequent appeal.  See NRS 34.170; NRS 34.330; see also Aspen Fin. Servs., Inc., 313 P.3d at 877-78.  90% of the time, your writ petition will be denied because you can eventually appeal from the order of which you now complain.

Occasionally, however, the appellate courts will agree to hear a writ petition even if the issue can be resolved in a later appeal.  The Nevada Supreme Court is particularly likely to consider the writ if you can demonstrate that resolution of the issues will promote judicial economy, clarify the law, and/or eliminate other, related litigation.  Yellow Cab of Reno, Inc. v. Second Judicial Dist. Court of State ex rel. Cnty. of Washoe, 127 Nev. 583, 589, 262 P.3d 699, 703 (2011); Williams v. Eight Judicial Dist. Court of State, ex rel. Cnty. of Clark, 127 Nev. 518, 525, 262 P.3d 360, 365 (2011).

These instances are rare.  Unless your issue falls into one of the topic areas listed above, it may be worth saving your time and your client’s money to wait for the appeal.

HOW YOUR WRIT PETITION SHOULD LOOK.  

When you file a writ petition you are the “petitioner,” the district court judge is the “respondent” and your opposing party is the “real party in interest.”  NRAP 21(a)(1).  Your caption should identify the parties in that manner. You have to serve the petition on the district court and your opposing party, as well as a file a notice of writ petition with the district court.  As with appeals, the district court has discretion whether to stay the litigation pending resolution of the writ proceeding.

Your writ petition must set forth: (1) the relief you are seeking, (2) the issues you want decided, (3) the facts necessary for the appellate court to understand the issues, and (4) legal argument as to why the appellate court should grant your writ.  NRAP 21(a)(3).  Writ petitions must be verified, i.e., signed under oath.  NRAP 21(a)(4).  And you should probably include some argument as to why your issue is appropriate for writ relief.

Unlike an appeal, the opposing party may not get a chance to respond.  The appellate court can deny your writ petition without an answer.  NRAP 21(b)(1).  If it determines that an answer is warranted, the appellate court will order the real party in interest, and sometimes the judge, to respond.  NRAP 21(b)(1); NRAP 21(b)(4).  Once the real party in interest responds, you may be asked for a reply, or the court may simply take the writ under consideration.

Writ petitions have to comply with the same formatting requirements as appeal briefs.  NRAP 21(d).  You also have to submit an appendix which complies with Rule 30.  NRAP 21(a)(4).

SO, WILL YOU FILE? 

My rule of thumb regarding writs is only to file if necessary.  Sometimes your client will believe it is necessary against your advice.  Sometimes, you will believe it is necessary only to have the Supreme Court dismiss your petition.  But it is important to know that writ petitions are not simply an appeal on steroids.  You are not automatically granted the right to interlocutory appellate review.