The story starts seven years ago, on the Indonesian Island of Sulawesi, where the wildlife photographer David Slater left his tripod unmanned in the hope that an endangered Celebes Crested Macaque would help itself to a few selfies. Slater, along with Wildlife Personalities Ltd & Blurb Inc., went on to publish the resulting images in a book, citing themselves as the copyright owners.
In what could be considered a somewhat bizarre move, PETA, alongside Dr Anje Engelhardt, a primatologist, filed for copyright infringement as “next friends” on behalf of Naruto, a mechanism under US law designed to allow parties to sue on behalf of parties lacking the capacity to do so themselves.
Odd as the case may seem, it is not unprecedented. In 2004, in The Cetacean Community vs. George W. Bush and others, the “self-appointed attorney for all of the world’s whales, porpoises, and dolphins” claimed, unsuccessfully, for physical injuries caused by Navy Sonar. In 2012, a year before the influential documentary Blackfish was released, which commented on the practices of Sea World and on the well-publicised death of star trainer Dawn Brancheau by the killer whale named Tilikum, PETA brought a claim, again unsuccessfully, against Sea World under the Thirteenth Amendment.
William Orrick, sitting in the District Court had, in finding for the Defendants, concluded that Naruto did have constitutional standing under Article III of the US constitution, but lacked statutory standing under the Copyright Act (Act). Judge Bea has, last month, reached the same conclusions on appeal.
With regards to constitutional standing, like Orrick in the first instance, Bea was, very reluctantly, bound by the precedent set in Cetacean – that there is nothing in Article III compelling the conclusion that animals lack standing (the whales ultimately lost on statutory standing under environmental legislation). In his judgement, Bea repeatedly urges Cetacean to be reconsidered. That collection of cetaceans are the only animals ever to have their constitutional standing recognised and despite the case being followed here, it seems very unlikely that honour will be bestowed upon another animal any time in the future.
Bea also had one new issue to consider – PETA’s right to bring the appeal. Dr Engelhardt, the man who had spent over 10 years studying these particular macaques and who knew Naruto personally, had dropped out before the appeal, leaving PETA as the macaque’s only friends. Whilst Naruto passes the test for next friends in “lacking access to court” or having “mental incapacity”, Bea felt PETA’s relationship with Naruto was not significant enough. This second limb of the test protects against would be protectors using vulnerable parties as pawns in achieving their own ends.
Bea even went on to question PETA’s devotion to Naruto. He was aware that PETA had filed a motion for settlement, which did not address Naruto’s claims……He commented pointedly, “were he capable of recognising this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) friend, for its failure to pursue his interests before its own“.
In the end though, if the whales could make a claim in their own right, then the fact that PETA was not Naruto’s friend could not deny him constitutional standing.
Where the appeal was lost, as it had been in Cetacean, was on statutory standing. Bea followed the line in that case that if Congress wanted to take the “extraordinary step” of allowing animals to sue, then it must be plainly stated in the legislation. There is, unsurprisingly, no such wording.
Bea nevertheless went on to look at the language in the Act, and you can’t help but feel that he was enjoying himself when he wrote that, according to the rules of statutory construction, references in the Act to the terms “legitimate” and “widower” imply humanity and “necessarily exclude animals that do not marry and do not have heirs entitled to property by law“.
But not as much as Orrick was in the first instance, where he wrote, “a monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the setup for a punch line is really happening“.