The Law of the Jungle

It's been a busy month - two steps backward, one forward - for animal rights proponents.

As some of you know, I began my professional life as a biological anthropologist, studying the behavior and ecology of yellow baboons in Kenya, so I probably pay a bit more attention to legal questions involving non-human primates than your average lawyer or law professor. Two decisions this past month are sure to make it into the casebooks on "Animals and the Law" (of which there are, apparently, already a fair number); though animal rights proponents lost in both cases, there are hints—pretty strong ones, in fact—that the last word on these questions has not been heard.

The seemingly endless dispute over the famous "monkey selfie" may now finally be drawing to a close. To recap (more details here): the picture above was snapped by an Indonesian macaque—named "Naruto" (though by whom has never been clear)—using equipment owned (and inadvertently left unattended) by wildlife photographer David Slater. When Slater published (2015) the photo in a book of his photographs, People for the Ethical Treatment of Animals (PETA) filed suit in federal court, asserting that Slater's use of the photo infringed copyright in the photo, which (PETA asserted) belonged to the monkey. PETA filed it suit as "Next Friend"—a well-recognized legal doctrine that in certain circumstances permits third parties to prosecute claims on behalf of others (typically, children or the mentally incompetent) unable to bring the claims on their own.

In 2016, the CA district court (correctly, in my view) dismissed the suit on the grounds that Naruto had no valid copyright claim, because under the Copyright Act non-humans cannot own copyrights. [A stronger argument, in my view, is that the photograph is not protected by copyright because it is not an "original" work in the copyright sense—one displaying some measure of creativity on the part of its author]. The court did not address PETA's standing to pursue the claim.

PETA appealed to the Ninth Circuit. In September 2017, while the appeal was pending, PETA reached a settlement with Slater, under which it would drop the appeal in return for Slater's donation of a portion of the proceeds from use of the photograph to organizations involved in conservation and habitat-protection efforts on Sulawesi (Naruto's home island, in Indonesia).

PETA and Slater—not, as it happened, joined by Naruto himself—filed a motion with the court seeking to have the appeal dismissed and the district court decision vacated.

The court took seven months to rule on that motion—a clue that something unusual was going on, given that post-settlement dismissals and vacatur are fairly routinely granted. In March, it issued its order, denying the motion. It expressed concern that PETA, in agreeing to the settlement, was advancing its interests, rather than (as required of a "next friend") Naruto's, and that, having lost on the merits in the district court, it might be trying to "manipulate the formation of precedent by dismissing those proceedings that may lead to an adverse decision."

"This case has been fully briefed and argued by both sides, and the court has expended considerable resources to come to a resolution. Denying the motion to dismiss ensures that the investment of public resources already devoted to this litigation will have some return…. Declining to vacate the lower court judgment prevents the parties from manipulating precedent in a way that suits their institutional preferences, [and] courts must be particularly wary of abetting 'strategic behavior' on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case."

Finally, in late April, the court issued its ruling on the merits of the appeal, affirming the dismissal of the suit. PETA, it held, had no standing to pursue Naruto's claims as "next friend" because it had not demonstrated that it had "some significant relationship with, and is truly dedicated to the best interests of, the petitioner." The court was particularly critical of PETA's settlement of Naruto's claim:

We feel compelled to note that … PETA appears to have failed to live up to the title of "friend." After seeing the proverbial writing on the wall at oral argument, 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 …

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 publication of 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 court went on to affirm the district court's holding that Naruto had no copyright in the photograph because non-humans are barred from copyright ownership. But to reach this question of Naruto's copyright ownership, it first had to ask whether Naruto himself had standing to litigate the claim (even if PETA did not). It held, surprisingly, that he did; the complaint, alleging that "Naruto has suffered concrete and particularized economic harms as a result of [Slater's] infringing conduct, harms that can be redressed by a judgment declaring Naruto the author and owner of the Monkey Selfies," satisfied the constitutional "case or controversy" requirement in Article III, and the claimant—Naruto—therefore had standing under the Constitution to bring his claim.

This is the interesting part of the decision, occasioning a rather lively debate between the panel majority (Judges Bea and Robreno) and Judge Smith, concurring. The court declared that it was bound by a prior Ninth Circuit case on the question—Cetacean Community v Bush, 386 F.3d 1169 (2004)—though it pointedly noted that it emphatically disagreed with the conclusion of the earlier case that non-humans can satisfy constitutional standing requirements, and it called on the entire court to reconsider en banc, and to overturn, the earlier holding.

So we may not have heard the last of the Case of the Monkey Selfies after all …

The second case of interest came from the NY Court of Appeals, In the Matter of Nonhuman Rights Project on Behalf of Tommy & Kiko. The procedural posture here is a little complicated. Nonhuman Rights Project (NRP), as "next friend," sought habeas corpus relief for two chimpanzees held in confinement. The trial court declined its motion to issue a "show cause" order, and NRP sought leave to appeal the ruling; NY's highest court denied leave to appeal (without ruling on the underlying question of whether chimpanzees are entitled to habeas corpus relief in the first place).

What makes the case of interest is the rather remarkable concurrence by Judge Fahey.

The inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas is on display in this matter…. [D]enial of leave to appeal is not a decision on the merits of petitioner's claims, [and] the question will have to be addressed eventually: Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence a thing?

[The lower court] reasoned that chimpanzees are not persons because they lack "the capacity or ability . . . to bear legal duties, or to be held legally accountable for their actions." … [But] the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one's infant child or a parent suffering from dementia….

[The question is not] whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. The answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-awareness and self-control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor….Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures….

Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention…. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.

The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a "person" or a "thing" amounts to a refusal to confront a manifest injustice.

The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a "person," there is no doubt that it is not merely a thing.

I've often said that people in 100 or 200 years are probably going to look back at our treatment of animals the way we look back at slave-holding, as a kind of unthinkable and deeply morally objectionable behavior. Judge Fahey's words would have been well-nigh unthinkable in a judicial opinion 25 or 30 years ago, but times do change, and the law sometimes changes with it, and I'm starting to sense that the tide is ever-so-slowly changing on this one.