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PETA’s Monkey Business

In a loss for People for the Ethical Treatment of Animals but a win for headline writers – I am particularly fond of San Francisco Patch’s “Monkey See, Monkey Sue” – the 9th U.S. Circuit Court of Appeals recently ruled that a monkey cannot own the rights to a photograph.

The monkey in question, a crested macaque named Naruto, was part of a group in Indonesia that photographer David Slater was documenting several years ago. As he described to “This American Life,” Slater envisioned a particular shot he was unable to secure using traditional techniques. So he set up the camera with a cable and a shutter button, hoping to entice the curious monkeys to set off the camera. The plan yielded a variety shots with which Slater was pleased – including Naruto’s appealing “selfie.” He licensed the photo to several publications and eventually included it in his book “Wildlife Personalities.”

Slater had been involved in a dispute with Wikipedia, which claimed the work of a nonhuman animal was by default in the public domain and thus free for anyone to use. The dispute was frustrating for Slater, but at least the question of whether the copyright was his or no one’s didn’t require a radical overhaul in the legal definition of personhood.

But then PETA arrived to do what it arguably does best: escalate the situation. In a separate action, PETA sued Slater for copyright infringement on Naruto’s behalf.

The 9th Circuit has now dismissed that case. In its opinion, the court noted that not only do nonhuman animals like monkeys lack standing under the Copyright Act, but that PETA failed to establish “next friend” standing to allow it to sue on Naruto’s behalf. Next friend legal status applies to someone acting in court on behalf of someone unable to do so, such as a child or a person with a severe disability. This party typically must have a close relationship to the person for whom they are acting. The court found that PETA didn’t have particularly close ties to Naruto, nor did it convincingly act in the macaque’s interest.

It seems PETA pursued this copyright claim on behalf of an artistically creative monkey not to benefit the artist – the monkey never got a nickel out of whatever settlement was derived from the use of his art – but for its own purposes. As the 9th Circuit asked in a footnote to its opinion, if animals can sue, “How do we prevent people (or organizations, like PETA) from using animals to advance their human agendas?”

And what is that agenda? Let’s call it vegan activism. In a nutshell, PETA seems intent on pressing upon the rest of us its view that animals have essentially the same rights as humans – not just a right to share the planet, but also a right to occupy a space at the top of the literal and economic food chains. PETA would take the expression “meat is murder” from a slogan to a law, if it could. Pressing the courts to find legal standing for animals in their own right is a building block toward that objective.

True to form, the 9th Circuit – in recent decades the nation’s most left-leaning, at least until Obama appointees took control in other circuits – provided the opening itself in the 2004 decision Cetacean Community v. Bush. In that case, a three-judge panel found that a lawyer claiming to speak for all whales and dolphins had constitutional standing to bring a lawsuit. That panel ruled that a human genome is not a prerequisite to demanding the liberties articulated by the founding fathers, who at that time did not even see fit to extend such liberties to humans including slaves, free women, or free men who didn’t own land. Those human exclusions were later cured by law and constitutional amendment; the circuit court cited no such foundation for its conclusion as to whales and dolphins. The cetaceans still lost the case, however, since even the appeals court conceded that the specific statutes in question granted legal standing only to those with human DNA.

In the Naruto v. Slater opinion, the latest three-judge 9th Circuit panel openly regretted the Cetacean decision. The majority wrote: “In reflecting on these questions, [concurring] Judge [N.R.] Smith reaches the reasonable conclusion that animals should not be permitted to sue in human courts. As a pure policy matter, we agree. But we are not a legislature, and this court’s decision in Cetacean limits our options.” In this instance, the option the court chose was refusing to grant PETA’s motion to dismiss after reaching a settlement last fall – a settlement, the court pointed out, that did not directly benefit Naruto. In light of Cetacean, the best the court felt it could do was to make it harder for PETA and other organizations to bring future lawsuits on animals’ behalf. The judges also ordered PETA to pay Slater’s attorneys’ fees.

PETA may not have won, but it probably got at least part of what it wanted in bringing this monkey business to court. We can’t blame the organization for advocating its cause, especially after a federal appeals court essentially invited it to do so. And as for exploiting a purported victim’s suffering (though Naruto seemed to be pretty content with his selfie), well, PETA is only following the time-honored path of any nonprofit development director. The mere publicity alone resulting from the case means more donations, regardless of the outcome. And that ain’t peanuts.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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