The Monkey Selfie case has come to a depressing and cynical end. The case had to do with a photograph of an Indonesian monkey. David Slater, a professional photographer, set up a camera on a tripod in the monkey’s habitat and left the camera’s remote trigger near the camera. One monkey, Naruto, picked up the remote trigger, mugged for the camera, and pressed the button. The photo went viral. Slater made a little money. But then PETA got involved.

PETA, purporting to act as Naruto’s next friend, sued Slater for copyright infringement. According to PETA, Naruto, not Slater, was the author of the photograph. The animal rights lawyers did their thing. They lost, of course, but they got some attention for their cause. How interesting for them. How virtuous they were. How edifying for everyone involved.

Except that the case wasn’t so rosy for Slater, the photographer. Even though he won the case, the legal ordeal left him broke, and he was facing the costs of PETA’s appeal: “‘I’m trying to become a tennis coach,’ Slater said by phone on Wednesday from his home in Chepstow, Wales. ‘I’m even thinking about doing dog walking. I don’t make enough money to pay income tax.’”

And so Slater and PETA settled. After the settlement, PETA issued a statement suggesting that its defeat was more like a victory:

Naruto’s case went all the way to a federal appeals court and shows that the struggle for animal rights is ingrained in our legal system.

Slater, who has promised to pay a portion of any profits to a charity that helps protect the monkeys, gets something from the settlement, too: relief from the ruinous costs of fighting off PETA’s claims.

But what irks me about the settlement is the way PETA tried to engineer vacatur of the lower court decision rejecting its claims. In general, vacatur is appropriate if a case becomes moot while on appeal, but this general rule does not always apply if the case becomes moot only because the parties settle. This doesn’t look great for PETA. But PETA urged the court to vacate the judgment nevertheless:

Here, however, PETA contends that “automatic” vacatur is still warranted. The central inquiry under Bonner Mall is whether the party against whom judgment was entered caused the mootness by voluntary action by that party. While vacatur may not be warranted where a party voluntarily gives up his or her appeal, a party who … is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment. Here, the settlement is between PETA and Defendants. Accordingly, under Bonner Mall, PETA maintains that Naruto should not be forced to acquiesce to the district court’s judgment that he lacks standing under the Copyright Act where the appeal will be mooted by an agreement by PETA and PETA’s Next Friend status is contested and undecided.

(Citations and internal quotation marks omitted).

It’s hard to square this paragraph with the notion that the real plaintiff is Naruto, not PETA. We see that Naruto is really just a prop to be deployed in the case as PETA sees fit. Poorly done, PETA.

I’ve always been attracted by Justice Frankfurter’s view of the role of the courts:

Limitation on ‘the judicial Power of the United States’ is expressed by the requirement that a litigant must have ‘standing to sue’ or, more comprehensively, that a federal court may entertain a controversy only if it is ‘justiciable.’ Both characterizations mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed.

It’s possible to take this too far, of course, but Justice Frankfurter’s point was that the courts are for resolving real disputes between people and not for making basic policy or for doing the work that ought to be done in philosophy seminars. PETA flaunted these limitations, and Slater, who was in the right, nevertheless paid the price.