Ninth Circuit Ends “Monkey Selfie” Boondoggle

If for no reason other than the fact that I’m out of monkey jokes, I’m pleased to announce that the Ninth Circuit Court of Appeals has finally put an end to PETA’s ridiculous litigation in which the organization alleged that the Sulawesi crested macaque in the photograph known as the “monkey selfie” is rightfully the owner of the copyright in the image. After photographer David Slater had his copyright—one could argue—stripped by the blogosphere, he was then forced to defend himself in this preposterous claim by the “animal rights” organization. So, I’m glad for his sake that this bit of absurdist theater is finally over.

Both the majority and concurring opinions focus primarily on PETA’s claim that it had standing in court to act as “next friend” on behalf of the named plaintiff—the macaque whom they randomly called Naruto. “Next friends” are typically representatives of individual claimants who cannot advocate for themselves—minors, mentally or physically impaired persons, or imprisoned persons. A “next friend” must show proper relationship to the allegedly injured party and that they are truly representing the injured party’s interests rather than some other agenda while posing as a “next friend.” In the concurring opinion, Judge Smith writes …

“Animal-next-friend standing is particularly susceptible to abuse. Allowing next-friend standing on behalf of animals allows lawyers [citation omitted] and various interest groups [citation omitted] to bring suit on behalf of those animals or objects with no means or manner to ensure the animals’ interests are truly being expressed or advanced. Such a change would fundamentally alter the litigation landscape. Institutional actors could simply claim some form of relationship to the animal or object to obtain standing and use it to advance their own institutional goals with no means to curtail those actions. We have no idea whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.”

And there’s this biting comment in the footnotes of the majority opinion …

“… 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,” [citation omitted] PETA seems to employ Naruto as an unwitting pawn in its ideological goals.”

It is admittedly a little disappointing that the court rejected PETA’s standing to represent the monkey in this case only because it might at least have been entertaining to read the opinion of the court on the copyright claim itself. Don’t get me wrong, I think the proposal that an animal can own a copyright is facially absurd—straining at the boundaries of even the most extreme anthropomorphism. Still, it might have been fun to watch the court inquire how, for instance, this primate resident of Indonesia managed to register “his” copyright in the United States in order to be eligible for statutory damages. And that list goes on.

As mentioned in an older post, one of PETA’s fatal flaws is the assumption that ownership of a copyright implies only commercial exploitation and, relatedly, the kind of litigation it brought on behalf of “animals everywhere.” But that’s not what copyright means. Copyright means choice. It means the author may choose the manner in which a work is exploited, and since an animal cannot express that kind of choice—at least not in any language we understand so far—even if PETA had standing, it would find its claims swirling around an ever-widening drain of absurd logic.

Copyright is complicated enough without asking the courts to read the minds of animals. I’m glad we can finally move on from this one.

© 2018, David Newhoff. All rights reserved.

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