Intellectual Property

When A Crested Macaque Is A Necessary Party: Ninth Circuit Denies Joint Motion To Dismiss Monkey-Selfie Case

Why on earth is this case still in the court system? The Ninth Circuit may be preparing to hand down a very important opinion.

By  
on

‘What is this monkey business?!’

Guess who’s back, back again! Naruto’s back, tell a friend! Naruto, for those with current events-related sensory overload and attendant memory loss, was the hirsute plaintiff in the infamous “monkey-selfie” case, in which he (through those rascally rabbits at the People for the Ethical Treatment of Animals, acting as Naruto’s “next friend”) sued photographer David Slater for including in his (the photographer’s) book a photograph that Naruto (maybe!) created. I say “maybe” in an exclamatory way because there remains a dispute as to which crested macaque actually captured and created the image at issue. But that is neither here nor there at this point, as Naruto v. Slater has progressed to a vastly more interesting procedural stage in which the court has declined the parties’ joint request to let sleeping dogs lie.

The last we heard of this case, way back in the halcyon days of fall 2017, was that the parties had reached a resolution and jointly moved to dismiss the appeal that was pending in the Ninth Circuit at the time. Generally, such a motion is received with open arms by the appellate court, as it takes one of many cases off of the court’s plate and frees it up to address other matters that are still in dispute. In fact, the Ninth Circuit has an entire mediation program that encourages appellants and appellees to meet and confer in an attempt to resolve their disputes and wipe their pending appeals off of the court’s calendar. Suffice it to say, news of a resolution is usually welcomed by those at the court who are already laboring under an almost inhumane caseload.

Not this time. Late last week, the Ninth Circuit, noting that Fed. R. App. P. 42 employs the word “may” and is thus permissive, issued an order denying the parties Joint Motion to Dismiss the Appeal and Vacate the Judgment. This is a bit of a rarity, to be sure, but is made more interesting by the “why.” The court did not issue a summary order, but instead spends a handful of pages elucidating the reasons for keeping this case active on the docket.

One reason is that the request was not timely, having come nearly two months after oral arguments. Everyone had had great fun at those arguments, addressing questions of whether animals possessed creative intent and were entitled to copyrights in works they created. The law certainly tilted toward “no way,” particularly in regard to the latter of those issues, but PETA continued to press the case despite a withering series of pointed questions during oral argument.

It is believed that the three-judge panel’s questioning of PETA, which could be described as “highly skeptical bordering on dubious” and its general demeanor toward the legal aspects of PETA’s case portended a ruling that would have been very bad for PETA indeed. Which appears to be another reason why the court denied the request to dismiss and vacate. The order specifically notes that it must be “particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.”

There is little doubt that PETA is an “institutional litigant” and the court appears to feel that PETA is seeking this dismissal and vacation in order to avoid the creation of precedent that may negatively impact PETA’s chances of success the next time they file a claim on behalf of another four-legged, furry, finned, or winged creature. This wariness is heightened by the court’s nuanced observation that PETA’s assertion that “animals have standing to claim relief provided by federal statutes is not singular[,]” and in fact seeks relief on behalf of those other than Plaintiff Naruto. Thus, as the court notes, maintaining the judgment and issuing the decision will “prevent[] the parties from manipulating precedent in a way that suits their institutional preferences.”

Sponsored

The court also acknowledges Naruto himself is not a party to the settlement giving rise to the dismissal, leaving him free to refile this action should he, or another “next friend,” see fit (or should he learn to type and pay court filing fees).

It appears that the Ninth Circuit may also have already put in major work on the decision in this case and does not want all that work to be for naught. The court notes that they have already ”expended considerable resources to come to a resolution” of the issues raised in the appeal and intend to make that resolution known. And, the findings they reach may have a big impact, not only in cases where organizations sue so that animals can claim intangible property rights, but in cases where robots or other horrifying AI-driven programs begin making, developing, creating, and “authoring” new content, and doing so free of the taint of the human hand. The Ninth Circuit in preserving its right to issue a decision as to whether non-humans can claim copyrights, is now in a position to hand down an opinion with a reach that far exceeds the animal kingdom.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

Sponsored

Topics

, , , , , ,