Naruto v. Slater

888 F.3d 418

NARUTO, a Crested Macaque, by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., Plaintiff-Appellant,

v.David John SLATER; Blurb, Inc., a Delaware corporation; Wildlife Personalities, Ltd., a United Kingdom private limited company, Defendants-Appellees.

No. 16-15469

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2017 San Francisco, California

Filed April 23, 2018

David A. Schwarz (argued), Irell & Manella LLP, Los Angeles, California, for Plaintiff-Appellant.

Andrew J. Dhuey (argued), Berkeley, California, for Defendants-Appellees David John Slater and Wildlife Personalities, Ltd.

Angela Dunning (argued), Jacqueline B. Kort, Kyle C. Wong, Jessica Valenzuela Santamaria, Cooley LLP, Palo Alto, California, for Defendant-Appellee Blurb, Inc.

Justin Marceau, Denver, Colorado; Corey Page, San Francisco, California; for Amicus Curiae Agustin Fuentes.

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and Eduardo C. Robreno,^** District Judge.

Concurrence by Judge N.R. Smith

We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court's precedent requires us to conclude that the monkey's claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.¹ We therefore affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Naruto was a seven-year-old crested macaque that lived—and may still live—in a reserve on the island of Sulawesi, Indonesia. In 2011, a wildlife photographer, David Slater, left his camera unattended in the reserve. Naruto allegedly took several photographs of himself (the "Monkey Selfies") with Slater's camera.

Slater and Wildlife Personalities, Ltd., ("Wildlife") published the Monkey Selfies in a book that Slater created through Blurb, Inc.'s ("Blurb") website in December 2014. The book identifies Slater and Wildlife as the copyright owners of the Monkey Selfies. However, Slater admits throughout the book that Naruto took the photographs at issue. For example, the book describes one of the Monkey Selfies as follows: "Sulawesi crested black macaque smiles at itself while pressing the shutter button on a camera." Another excerpt from the book describes Naruto as "[p]osing to take its own photograph, unworried by its own reflection, smiling. Surely a sign of self-awareness?"

In 2015 People for the Ethical Treatment of Animals ("PETA") and Dr. Antje Engelhardt filed a complaint for copyright infringement against Slater, Wildlife, and Blurb, as Next Friends on behalf of Naruto. The complaint alleges that Dr. Engelhardt has studied the crested macaques in Sulawesi, Indonesia for over a decade and has known, monitored, and studied Naruto since his birth. The complaint does not allege any history or relationship between PETA and Naruto.² Instead, the complaint alleges that PETA is "the largest animal rights organization in the world" and "has championed establishing the rights and legal protections available to animals beyond their utility to human beings...."

Slater, Wildlife, and Blurb filed motions to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds that the complaint did not state facts sufficient to establish standing under Article III or statutory standing under the Copyright Act. The district court granted the motions to dismiss. In its order the district court stated the following with respect to Article III standing:

The Ninth Circuit has stated that Article III "does not compel the conclusion that a statutorily authorized suit in the name of an animal is not a ‘case or controversy.’ " Cetacean Cmty. v. Bush , 386 F.3d 1169, 1175 (9th Cir. 2004). I need not discuss Article III standing further, because regardless of whether Naruto fulfills the requirements of Article III, he must demonstrate standing under the Copyright Act for his claim to survive under Rule 12(b)(6).

We are, of course, bound by the precedent set in Cetacean Community until and unless overruled by an en banc panel or the Supreme Court. Miller v. Gammie , 335 F.3d 889, 899 (9th Cir. 2003) (en banc).

The district court concluded that Naruto failed to establish statutory standing under the Copyright Act. PETA and Dr. Engelhardt timely appealed on Naruto's behalf. However, after the appeal was filed, and with the permission of Appellees, Dr. Engelhardt withdrew from the litigation. Therefore, on appeal, only PETA remains to represent Naruto as his "next friend."

STANDARD OF REVIEW

This court reviews de novo dismissals under Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). See Rhoades v. Avon Prods., Inc. , 504 F.3d 1151, 1156 (9th Cir. 2007). "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001).

DISCUSSION

I. Next Friend Standing

We gravely doubt that PETA can validly assert "next friend" status to represent claims made for the monkey both (1) because PETA has failed to allege any facts to establish the required significant relationship between a next friend and a real party in interest and (2) because an animal cannot be represented, under our laws, by a "next friend."

First, "[i]n order to establish next-friend standing, the putative next friend must show: (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner." Coalition of Clergy v. Bush , 310 F.3d 1153, 1159–60 (9th Cir. 2002) (quoting Massie ex rel. Kroll v. Woodford , 244 F.3d 1192, 1194 (9th Cir. 2001) ). Here, we are concerned with the second requirement. PETA does not claim to have a relationship with Naruto that is any more significant than its relationship with any other animal. Thus, PETA fails to meet the "significant relationship" requirement and cannot sue as Naruto's next friend.³

But, even if PETA had alleged a significant relationship with Naruto, it still could not sue as Naruto's next friend. In Whitmore v. Arkansas , 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), the Supreme Court discussed "next friend" standing in a habeas case in which a third-party litigant sought to challenge the death sentence of a capital defendant, Simmons, who had forsworn his right to appeal. In considering whether the third-party, Whitmore, had standing to sue on behalf of Simmons, the Court emphasized the limited nature of "next friend" standing and explained the rationale behind its limitations. For example, requiring a showing of incompetency and a "significant relationship" ensures that "the litigant asserting only a generalized interest in constitutional governance" does not "circumvent the jurisdictional limits of Article III simply by assuming the mantle of ‘next friend.’ " Id. at 164, 110 S.Ct. 1717. In short, requirements of a significant interest in the subject party protect against abuses of the third-party standing rule. As the Court noted in a prior case, "however worthy and high minded the motives of ‘next friends’ may be, they inevitably run the risk of making the actual [party] a pawn to be manipulated on a chessboard larger than his own case." Lenhard v. Wolff , 443 U.S. 1306, 1312, 100 S.Ct. 3, 61 L.Ed.2d 885 (1979). Based on the dangers inherent in any third-party standing doctrine, the Court declined to expand "next friend" standing beyond what was authorized by Congress in the habeas corpus statute. Whitmore , 495 U.S. at 164–165, 110 S.Ct. 1717.

Here, we follow the Supreme Court's lead in holding that "the scope of any federal doctrine of ‘next friend’ standing is no broader than what is permitted by the ... statute." Id. Although Congress has authorized "next friend" lawsuits on behalf of habeas petitioners, see 28 U.S.C. § 2242, and on behalf of a "minor or incompetent person," see Fed. R. Civ. P. 17(c), there is no such authorization for "next friend" lawsuits brought on behalf of animals. Our precedent on statutory interpretation should apply to court rules as well as statutes: if animals are to be accorded rights to sue, the provisions involved therefore should state such rights expressly. See Cetacean Cmty. , 386 F.3d at 1179. Because we believe the Supreme Court's reasoning in Whitmore counsels against court-initiated expansion of "next friend" standing, we decline to recognize the right of next friends to bring suit on behalf of animals, absent express authorization from Congress.

Even so, we must proceed to the merits because Naruto's lack of a next friend does not destroy his standing to sue, as having a "case or controversy" under Article III of the Constitution. Federal Rule of Civil Procedure 17, which authorizes "next friend" lawsuits, obligates the court "to consider whether [incompetent parties] are adequately protected," even where they have no "next friend" or "guardian." U.S. v. 30.64 Acres of Land , 795 F.2d 796, 805 (9th Cir. 1986). Within this obligation, the court has "broad discretion and need not appoint a guardian ad litem [or next friend] if it determines the person is or can be otherwise adequately protected." Id . (citing Roberts v. Ohio Casualty Ins. Co. , 256 F.2d 35, 39 (5th Cir. 1958) (" Rule 17(c) does not make the appointment of a guardian ad litem mandatory.") ). See also Harris v. Mangum , 863 F.3d 1133, 1139 n.2 (9th Cir. 2017) (noting circumstances in which "appointing a guardian ad litem ... could hinder the purpose of Rule 17(c)," and thus was not required). For example, "the court may find that the incompetent person's interests would be adequately protected by the appointment of a lawyer." Krain v. Smallwood , 880 F.2d...