Monica Welker, 2018-19 Blog Chair, University of Cincinnati Law Review
Editor’s Note: This is the first in a new series of articles on current events in the legal community that we at the University of Cincinnati Law Review hope to highlight in addition to our usual member scholarship.
This week, the Ninth Circuit ruled on the case of Naruto the Crested Macaque v. David Slater the Photographer. In 2011, Slater left his camera unattended on an island in Indonesia, and Naruto stumbled across the camera and took a series of photos of himself. Slater published the photos in a book, and the book identified the photos as selfies taken by a macaque.[1]
In 2015, People for the Ethical Treatment of Animals (PETA) filed a copyright infringement lawsuit on behalf of Naruto.[2] It used the “next friend” form of standing, which allows a petitioner who is unable to litigate his own cause (due to mental incapacity, lack of access to court, or other similar disability) to have his cause brought by someone with a significant relationship to the petitioner.[3]
The question before the Ninth Circuit was whether PETA’s filing on behalf of Naruto met the definition of “next friend” standing. The court began its examination with a recitation of the standard of “next friend” standing that it detailed in Clergy v. Bush in 2002.[4] There, the court held that a petitioner unable to litigate his own cause could have his cause brought forth by a “friend [who] has some significant relationship with, and is truly dedicated to the best interests of, the petitioner.”[5]
Viewing the case through this paradigm, the Ninth Circuit permitted a dismissal of Naruto’s claim, saying that PETA failed to establish the appropriate significant relationship necessary to qualify as a “next friend,” but also because an animal can not be represented by a “next friend.” [6]
While the court could have stopped after finding PETA’s relationship with Naruto to fail the significant relationship test, it took the time to explore whether animals can be represented by a “next friend.” [7]
The court examined what the Supreme Court said in Whitmore v. Arkansas[8]. There, the Supreme Court considered whether a “next friend” can bring a habeas appeal on behalf of a prisoner who had forsworn his right to appeal.[9] The Supreme Court examined its past precautions against “next friends” using the petitioner as a pawn for the next friend’s own ends.[10] The Whitmore opinion used that holding to say that courts cannot permit any expansion of the “next friends” doctrine beyond its bounds of habeas petitioners, minors, and incompetent persons.[11]
Thus, since animals are neither habeas petitioners, minors or incompetent persons, and since it did seem that PETA was using “next friend” standing in order to use Naruto as a pawn to PETA’s own ends, the Ninth Circuit affirmed the trial court’s dismissal of the claim.[12]
The Ninth Circuit’s logic is sound. Inherent in it is the idea that a major change in civil procedure, such as who has standing, should be the result of deliberation of committees or legislators. The common law allows for the shaping of law, but it has stood the test of time because change comes incrementally, and after shifts in public perceptions and the culture. The judiciary can mold the law, but it cannot completely break the mold. If the common law stops being a reflection of public ideals, it, by definition, stops being common law.
The day may come when human perceptions allow for us to conceive that other species can recover damages via a court of law. That day, however, has not yet come, and Naruto’s copyright to his selfie is not the right case to establish that.
[1] Naruto v. Slater, No. 16-15469, at *4-5 (9th Cir. April 23, 2018).
[2] Ibid.
[3] Ibid. at 7.
[4] F.3d 1153, 1159-60 (9th Cir. 2002).
[5] Ibid.
[6] Naruto, No. 16-15469, at 7.
[7] Ibid.
[8] 495 U.S. 149 (1990).
[9] Naruto, No. 16-15469, at 8.
[10] Ibid, quoting Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979).
[11] Ibid.
[12] Ibid.
Naruto’s photo courtesy of Wiki Commons, at https://commons.wikimedia.org/wiki/File:Macaca_nigra_self-portrait_large.jpg on April 24, 2018.
