04/24/2018
I absolutely love 9th Circuit Court of Appeals Judge N.R. Smith’s Footnote 11 in his concurrence in the Naruto v. Slater case (the famous Monky Selfie Case)(kudos Judge Smith!):
11 Indeed, this case is a prime example of the abuse the Majority opinion would now allow. In 2011, Slater (a photographer) went to the Tangkoko Reserve in Indonesia and setup a camera. Naruto, a crested macaque, pushed the shutter. Slater and Wildlife Personalities subsequently included the photographs in a book published by Blurb. In 2015, PETA—with no evidence it has any relationship whatsoever to Naruto—brought the instant suit claiming that Slater, Wildlife Personalities, and Blurb had violated Naruto’s rights under the Copyright Act. PETA alleged that it “ha[d] a genuine concern for Naruto’s wellbeing and [was] dedicated to pursing his best interests in this litigation” and that it “ha[d] the financial and operational resources and the professional expertise to administer and protect Naruto’s copyright in the Monkey Selfies.” Compl. at 4. PETA sought, inter alia, a court order “[p]ermitting [PETA] to administer and protect Naruto’s authorship of and copyright in the Monkey Selfies.” Id. at 10. PETA lost at the district court and appealed. When Dr. Engelhardt moved to be dismissed from the case, PETA twice affirmatively stated it would “fulfill the duties of a next friend.” Notice of Withdrawal of Next Friend Antje Engelhardt (May 4, 2016); see also Motion to Correct Caption (May 10, 2016) (“PETA shall remain responsible for maintaining this litigation and fulfilling the duties of a [n]ext [f]riend pursuant to Federal Rule of Civil Procedure 17(c).” (emphasis added)). However, PETA quickly changed its tune after oral argument. On September 11, 2017, PETA and Defendants moved to dismiss the appeal and vacate the lower court’s judgment. Joint Motion to Dismiss Appeal and Vacate the Judgment (Sept. 11, 2017). But, unlike a normal settlement, the purported plaintiff, Naruto, was not a party. “Dismissal with vacatur is just and proper where, as here, the Plaintiff [Naruto] is not a party to the settlement.” Id. at 1 (emphasis added). Rather, his purported next friend, PETA, settled its own claims: “the settlement resolves all disputes arising out of this litigation as between PETA and Defendants.” Id. (emphasis added). It remains a mystery to me what “claims” PETA (a non-party) could settle. Nevertheless, even though PETA only settled its own claims, it maintained that “the settlement also renders moot the appeal filed on behalf of the Plaintiff Naruto.” Id. Indeed, PETA went so far as to claim “[t]here is thus no longer any live case or controversy before this Court.” Id. at 3.
Though it had previously attested it would “fulfill[] the duties of a next friend,” PETA forgot its self-appointed role. “A ‘next friend’ does not [itself] become a party to the . . . action in which [it] participates, but simply pursues the cause on behalf of [the party in interest].” Whitmore, 495 U.S. at 163 (emphasis added). Whatever PETA did or did not do for Naruto (it only made representations to this court regarding what it obtained), PETA made sure to protect itself and with the Joint Motion sought to manipulate this court to avoid further negative precedent contrary to its institutional objectives. PETA cleverly argues that, because Naruto is not a party to the settlement and Defendants have maintained that PETA does not have next-friend standing, Naruto should not be bound by judgments entered because of PETA’s actions. But, clever arguments hardly conceal what is really occurring and the flip by PETA is quite surprising. One day, PETA maintains it will advance Naruto’s interests, the next it maintains that Naruto cannot be bound by PETA’s actions. It is clear: PETA’s real motivation in this case was to advance its own interests, not Naruto’s. PETA began this case purportedly seeking not only an injunction, but also a judgment “[d]eclaring Naruto to be the author and copyright owner of the Monkey Selfies with all attendant rights and privileges under law” and disgorgement. Compl. at 9–10. After oral argument, none of those objectives are, apparently, worth pursuing. Rather, when it came down to a possible negative, precedential ruling from the panel, PETA quickly sought to protect the institution, not the claimed real party in interest. PETA used Naruto as a “pawn to be manipulated on a chessboard larger than his own case.” Lenhard, 443 U.S. at 1312 (Rehnquist, J., writing for the full Supreme Court).
Well written. Well reasoned. Agreed.
