When I was a law clerk, a lawyer filed a civil rights action in my judge’s court (the U.S. District Court for the Northern District of Ohio) against an Ohio municipality, several police officers, and Lieutenant Bars. When I read the complaint, I was momentarily confused. Who was Lieutenant Bars? Why, the police dog, of course. My judge, the late Ann Aldrich, promptly dismissed the claim against Lieutenant Bars with prejudice. “While the new field of animal law has begun to take root,” she wrote, “and while it would be unwise to attempt to predict the state of the law far into the future, the Court holds, with perfect assurance, that at present, a dog lacks the capacity to be sued.”

Lieutenant Bars was on my mind when I read about the “Monkey Selfie” case in the Northern District of California. 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. Slater’s lawyers have moved to dismiss. Their brief has this fabulous introduction:

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 punchline is really happening. It should not be happening. Under Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), dismissal of this action is required for lack of standing and failure to state a claim on which relief can be granted. Monkey see, monkey sue is not good law—at least not in the Ninth Circuit.

A motion to dismiss usually starts with a section called “Alleged Facts,” or “Relevant Facts,” or the like. Slater’s brief begins with a section called “Relevant Fact.” “The only pertinent fact in this case is that Plaintiff is a monkey suing for copyright infringement.” That’s great, pithy writing.

I have no doubt that Slater is right about the law in light of Cetacean Community, which holds that a federal statutory cause of action will not be read to give animals standing to sue unless Congress says so expressly. But I wanted to comment on the monkey’s case with Lt. Bars’s case in mind. When we talk about capacity, we talk about capacity to sue and be sued. I don’t suppose that animal rights advocates would want to assert that human beings can sue animals for torts, say. If a monkey takes a banana from my tree, surely he is not guilty of trespass or conversion. If a dog makes a smelly mess right outside my door, surely he has not created a nuisance. Right? If the animal has an owner, maybe the owner is liable for something, and if not, then it’s just my bad luck. It seems to me that in general, it doesn’t make sense to talk about a monkey as the kind of being that can sue to enforce its legal rights unless we are prepared to say that it is the kind of being that can be sued to enforce its legal duties. Compare the case of the monkey or the dog with the case of a child, who, at least according to many courts, can be liable for intentional torts despite the child’s immaturity. See, e.g., Waters v. Blackshear, 412 Mass. 589 (1992), Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955).

Put this another way. Suppose Naruto wins his lawsuit. What will he do with the money? The answer, of course, is that PETA will do something with the money, according to what PETA thinks best. Again, the same thing is true for infants and incompetents. But it makes sense to ask questions like: “What would this child want to do with the money if he were grown up?” or “What would this person in a coma want to do with the money if he awoke from the coma?” What’s the analogous question for Naruto? I think it’s “What would this monkey want to do with the money if he were human?” That’s the problem.

The Copyright Office, by the way, is about to publish a new version of its Compendium that clarifies the law in this area:

[T]he Copyright Act protects “original works of authorship.” To qualify as a work of “authorship” a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

Examples:

• A photograph taken by a monkey.