I know I am supposed to be writing about Jesner v. Arab Bank, but the monkey selfie case calls. I wrote about the case back in November 2015, and I noted the settlement in September 2017, focusing particularly on the severe costs borne by David Slater, the wildlife photographer who placed the camera that took the photo of Naruto, the monkey in question.

The case was absurd from the start:

A photographer named David Slater, who was visiting Indonesia, set up his camera on a tripod and left the camera’s remote trigger accessible to the macaque monkeys that lived in the area. One of the monkeys pressed the button and took a few pictures of himself. PETA, purporting to act as next friend of the monkey, Naruto, brought a suit in the Northern District of California suing Slater and others for copyright infringement.

The district court dismissed the case, and PETA appealed. Then things got strange. After oral argument, PETA entered into a settlement agreement with Slater that purported to settle PETA’s claims against him (what claims are those? I though we were talking about Naruto’s claims). PETA and Slater jointly moved to dismiss the appeal, citing their settlement. They also asked the court to vacate the lower court’s decision dismissing the case. Now, why would PETA be interested in vacating the judgment? The Ninth Circuit asked the same question.

The court denied the motion to vacate the decision, and indeed, the motion to dismiss the appeal. FRAP 42 permits but does not require dismissal on the parties’ joint motion. It noted the significant work the court had put into the case, but more interestingly, it suggested that PETA was trying to avoid a ruling on the merits and that as an “institutional litigant,” it might be engaging in strategic behavior, “manipulating precedent in a way that suits [its] institutional preferences” by seeking vacatur of decisions that didn’t or wouldn’t go its way. Ouch!

The court went on to issue a lengthy opinion by Judge Bea, with a concurrence by Judge Smith, affirming the dismissal. The two judges who joined the opinion of the court felt bound by Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), to hold that an animal such as Naruto could have Article III standing. But they made it clear that they believed that Cetacean should be overruled, and they did not agree that PETA had standing to sue as Naruto’s next friend, on the grounds that PETA had not and could not allege a sufficient relationship with Naruto. I made a similar point in my post on the elephant habeas case. What reason does anyone have to think that PETA represents the interests of Naruto better than anyone else? But in a fascinating footnote, the court went further, pointing out that if PETA was Naruto’s next friend, it wasn’t much of a friend:

We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if such a relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral agument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something from the settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings form the monkey selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.” But now, 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 publicationof 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.

The footnote ends with a devastating indictment of PETA’s entire project:

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,” PETA seems to employ Naruto as an unwitting pawn in its ideological goals.

That is the best takedown of the entire “animals are people with rights” litigation industry I have ever read. I made a similar point, though less well, in my post on the settlement.

While the court reluctantly agreed that Naruto had Article III standing, it reached the obvious conclusion: he did not have standing under the Copyright Act to pursue his claims. Dismissal affirmed.

The court wasn’t done with PETA. It awarded attorney’s fees to Slater, citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994). What does footnote 19 of the Fogerty case say? In a copyright case, the factors that inform a court’s decision whether to award fees include “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.”

You would think after a decision like this PETA would hang its head in shame, but instead, it issued the following statement:

Today, the court reaffirmed that nonhuman animals have the constitutional right to bring a case to federal court when they’ve been wronged, but the opinion still missed the point, which was that Naruto the macaque undeniably took the photos, and denying him the right to sue under the U.S. Copyright Act emphasizes what PETA has argued all along—that he is discriminated against simply because he’s a nonhuman animal.

Meanwhile, the groundbreaking settlement in this case still stands, and 25 percent of the gross proceeds from the photos that Naruto took will go toward supporting him and his community—representing the first time that an animal will obtain a direct financial benefit from something that he or she created. PETA will continue working until the last barrier falls and animals’ fundamental rights are recognized under the law, including their rights as creators.

Describing the settlement as “groundbreaking” is especially awful, since it seems clear that Slater settled only after he was sued into oblivion. PETA says we should not use animals for purposes of experimentation. The Ninth Circuit has now said we should not use animals as props in ideologically driven litigation. I would add that we should not use people like Slater as poorly as PETA has used him here.