Naruto v. David Slater , 888 F.3d 418 ( 2018 )


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  •                       FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    NARUTO, a Crested Macaque, by and                   No. 16-15469
    through his Next Friends, People for
    the Ethical Treatment of Animals,                     D.C. No.
    Inc.,                                              3:15-cv-04324-
    Plaintiff-Appellant,                 WHO
    v.
    OPINION
    DAVID JOHN SLATER; BLURB, INC., a
    Delaware corporation; WILDLIFE
    PERSONALITIES, LTD., a United
    Kingdom private limited company,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Northern District of California
    William Horsley Orrick, District Judge, Presiding
    Argued and Submitted July 12, 2017
    San Francisco, California
    Filed April 23, 2018
    Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,
    and Eduardo C. Robreno,* District Judge.
    *
    The Honorable Eduardo C. Robreno, United States District Judge for
    the Eastern District of Pennsylvania, sitting by designation.
    2                        NARUTO V. SLATER
    Opinion by Judge Bea;
    Concurrence by Judge N.R. Smith
    SUMMARY**
    Copyright / Standing
    Affirming the district court’s dismissal of claims brought
    by a monkey, the panel held that the animal had constitutional
    standing but lacked statutory standing to claim copyright
    infringement of photographs known as the “Monkey Selfies.”
    The panel held that the complaint included facts sufficient
    to establish Article III standing because it alleged that the
    monkey was the author and owner of the photographs and had
    suffered concrete and particularized economic harms. The
    panel concluded that the monkey’s Article III standing was
    not dependent on the sufficiency of People for the Ethical
    Treatment of Animals, Inc., as a guardian or “next friend.”
    The panel held that the monkey lacked statutory standing
    because the Copyright Act does not expressly authorize
    animals to file copyright infringement suits.
    The panel granted appellees’ request for an award of
    attorneys’ fees on appeal.
    Concurring in part, Judge N.R. Smith wrote that the
    appeal should be dismissed and the district court’s judgment
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    NARUTO V. SLATER                      3
    on the merits should be vacated because the federal courts
    lacked jurisdiction to hear the case. Disagreeing with the
    majority’s conclusion that next-friend standing is
    nonjurisdictional, Judge Smith wrote that PETA’s failure to
    meet the requirements for next-friend standing removed
    jurisdiction of the court.
    COUNSEL
    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.
    4                         NARUTO V. SLATER
    OPINION
    BEA, Circuit Judge:
    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.”
    1
    17 U.S.C. § 101 et seq.
    NARUTO V. SLATER                                5
    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
    2
    At oral argument Appellant’s counsel suggested that, upon remand,
    the complaint could be amended to state a significant relationship between
    PETA and Naruto. However, PETA and Engelhardt agreed not to seek
    amendment of the complaint, no doubt to procure our earlier hearing their
    appeal. Having procured the benefit of the bargain, we will hold them to
    their contract.
    6                    NARUTO V. SLATER
    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).
    NARUTO V. SLATER                                 7
    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
    3
    We feel compelled to note that PETA’s deficiencies in this regard
    go far beyond its failure to plead a significant relationship with Naruto.
    Indeed, if any such relationship exists, 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,
    8                        NARUTO V. SLATER
    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
    (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
    and per PETA’s motion, Naruto was “not a party to the settlement,” nor
    were Naruto’s claims settled therein. Nevertheless, PETA apparently
    obtained something from the settlement with Slater, although not anything
    that would necessarily go to Naruto: As “part of the arrangement,” Slater
    agreed to pay a quarter of his earnings from the monkey selfie book “to
    charities that protect the habitat of Naruto and other crested macaques in
    Indonesia.” See Settlement Reached: ‘Monkey Selfie’ Case Broke New
    Ground For Animal Rights, PETA, https://www.peta.org/blog/settlement-
    reached-monkey- selfie-case-broke-new-ground-animal-rights/ (last
    visited Apr. 5, 2018). But 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. Puzzlingly, while representing to the
    world that “animals are not ours to eat, wear, experiment on, use for
    entertainment, or abuse in any other way,” see PETA, https://peta.org (last
    visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting
    pawn in its ideological goals. Yet this is precisely what is to be avoided
    by requiring next friends to have a significant relationship with, rather
    than an institutional interest in, the incompetent party—a point made by
    Chief Justice Rehnquist in Lenhard v. Wolff, 
    443 U.S. 1306
    , 1312 (1979).
    See infra page 9 for exact language.
    NARUTO V. SLATER                        9
    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.
    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 (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.
    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.
    10                      NARUTO V. SLATER
    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., 
    2556 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 1119
    , 1121 (9th Cir. 1989)
    (citing Westcott v. United States Fidelity & Guaranty Co.,
    
    158 F.2d 20
    , 22 (4th Cir. 1946). Indeed, courts have done
    just this, and the fact that those courts did not then dismiss the
    case proves that the lack of a next friend does not destroy an
    incompetent party’s standing. See, e.g., 
    Westcott, 158 F.2d at 22
    (affirming judgment against minor who was represented
    by an attorney but not a guardian ad litem).4
    4
    Here, we find that this case was briefed and argued by competent
    counsel who represented the legal interests of the incompetent party, but
    not a person, Naruto. Thus, his interests up to submission of the case
    following oral argument were adequately protected, notwithstanding any
    deficiencies in PETA’s “next friend” relationship.
    NARUTO V. SLATER                                11
    Concluding otherwise would conflict with our precedent.
    In Cetacean 
    Community, 386 F.3d at 1171
    , we held that a
    group of cetaceans could demonstrate Article III standing.
    There, the cetaceans had no purported “next friend.” Thus,
    were we to vacate the case we have before us now and
    remand with instructions to dismiss because of PETA’s
    failure to establish “next friend” standing, our jurisprudence
    would permit a case brought “directly” by animals without
    any allegation that the suit was brought by a “next
    friend”—as was the case in Cetacean—but would not permit
    a case brought by an organization as the “next friend” of the
    animal at issue if the organization failed to meet the relational
    requirements. That cannot be the law. We thus hold that
    Naruto’s Article III standing under Cetacean is not dependent
    on PETA’s sufficiency as a guardian or “next friend,” and we
    proceed to our Article III standing analysis.5
    5
    This is where we depart from the concurring opinion. First, Judge
    N.R. Smith seems to posit that we must restrict our inquiry into Article III
    standing and its effect on jurisdiction to an examination of the validity of
    the claimed Next Friend status, because that is how the complaint is
    stated. See infra, note 8 (Smith, J., concurring in part). In other words,
    since Naruto’s only stated basis for jurisdiction is Next Friend status, we
    can determine whether we have jurisdiction by examining only the validity
    of the Next Friend claim. But such a restriction is contrary to our long held
    and often restated duty to examine sua sponte whether jurisdiction exists,
    regardless how the parties have framed their claims. See, e.g. Gonzalez v.
    Thaler, 
    565 U.S. 134
    , 141 (2012) (“When a requirement goes to subject-
    matter jurisdiction, courts are obligated to consider sua sponte the issues
    that the parties have disclaimed or have not presented. Subject matter
    jurisdiction can never be waived or forfeited.”) (internal citations omitted).
    We therefore respectfully reject this suggested limitation.
    Next, although Judge N.R. Smith agrees that an animal cannot sue by
    next friend, he nevertheless limits his analysis to cases involving next
    friend suits under statutes which contain particular next friend provisions.
    Under Whitmore and Coalition, he argues, we must dismiss based on
    12                       NARUTO V. SLATER
    II. Article III Standing
    The Cetacean court held that all of the world’s whales,
    dolphins, and porpoises (the “Cetaceans”), through their self-
    appointed lawyer, alleged facts sufficient to establish
    standing under Article 
    III. 386 F.3d at 1175
    . The Cetaceans
    alleged concrete physical injuries caused by the Navy’s sonar
    systems in a suit brought by the “self-appointed attorney for
    PETA’s insufficiency as a “next friend.” But if we all agree that suits by
    animals cannot be brought under FRCP 17, because the rule refers only to
    “persons,” not “animals,” why would we want to follow and be bound by
    habeas cases for humans for which the statute (§ 2242) expressly provides
    next friend standing? The concurrence does not explain this point.
    In our view, the question of standing was explicitly decided in
    Cetacean. Although, as we explain later, we believe Cetacean was
    wrongly decided, we are bound by it. Short of an intervening decision
    from the Supreme Court or from an en banc panel of this court, see Miller
    v. Gammie, 
    335 F.3d 889
    , 899 (9th Cir. 2003), we cannot escape the
    proposition that animals have Article III standing to sue. With this as a
    starting premise, how could it be that PETA’s deficiency as Naruto’s
    representative could destroy Naruto’s otherwise valid Article III standing?
    Again, the concurrence fails to explain.
    Judge N.R. Smith insightfully identifies a series of issues raised by
    the prospect of allowing animals to sue. For example, if animals may sue,
    who may represent their interests? If animals have property rights, do they
    also have corresponding duties? How do we prevent people (or
    organizations, like PETA) from using animals to advance their human
    agendas? In reflecting on these questions, Judge 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. What
    we can do is urge this court to reexamine Cetacean. See infra note 6.
    What we cannot do is pretend Cetacean does not exist, or that it states
    something other, or milder, or more ambiguous on whether cetaceans have
    Article III standing.
    NARUTO V. SLATER                                13
    all of the world’s whales, porpoises, and dolphins.” 
    Id. at 1171.
    The Ninth Circuit made clear that the “sole plaintiff in
    this case” is the Cetaceans and did not discuss “next friend”
    or third-party standing. 
    Id. Although the
    Ninth Circuit
    affirmed the district court’s dismissal because the Cetaceans
    lacked statutory standing under the environmental statutes at
    issue in that case, the court 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.’”6 
    Id. at 1175.
    Here, the complaint alleges that Naruto is the author and
    owner of the Monkey Selfies. The complaint further alleges
    6
    The use of the double negative here is problematic in that it creates
    unnecessary ambiguity in the court’s holding. Better, we think, to say a
    petition is “timely” than that it is “not untimely,” for example. Better here
    to have said the animal has Article III standing. “This type of litotes (the
    negation of an opposite) often makes language convoluted. George
    Orwell ridiculed it with this example: ‘A not unblack dog was chasing a
    not unsmall rabbit across a not ungreen field.’” BRYAN GARNER,
    GARNER’S MODERN AMERICAN USAGE 545 (2003) (citing “Politics and
    the English Language” (1946), in 4 Collected Essays, Journalism and
    Letters of George Orwell 127, 138 n.1 (1968)). But this language does not
    change our ultimate conclusion. If nothing about Article III compels the
    conclusion that animals lack standing, then it cannot also be true that
    animals lack standing simply by virtue of their being animals. In other
    words, Cetacean at the very least holds that it is possible for animals, like
    humans, to demonstrate the kind of case or controversy required to
    establish Article III standing. Although the claims in Cetacean sounded
    in physical harm to plaintiffs, and the claims in Naruto sound in economic
    harm to Naruto, that difference is not a point of distinction for Article III
    purposes. “Cases or Controversies” have described claims involving
    property interests, as well as claims involving personal injuries, since the
    Founding, and before, at common law. Thus, the sort of blanket exclusion
    of animals from Article III jurisdiction which Judge N.R. Smith advocates
    is, alas, fundamentally inconsistent with Cetacean’s holding.
    14                       NARUTO V. SLATER
    that Naruto has suffered concrete and particularized economic
    harms as a result of the infringing conduct by the Appellees,
    harms that can be redressed by a judgment declaring Naruto
    as the author and owner of the Monkey Selfies. Under
    Cetacean, the complaint includes facts sufficient to establish
    Article III standing. Therefore, we must determine
    whether Naruto has statutory standing7            to sue for
    7
    Mindful that the term “standing” carries with it jurisdictional
    connotations, we clarify that our use of the term “statutory standing” refers
    to Naruto’s ability to sue under the Copyright Act, not his ability to sue
    generally. Thus, as we have observed in previous cases, “[t]hough lack of
    statutory standing requires dismissal for failure to state a claim, lack of
    Article III standing requires dismissal for lack of subject matter
    jurisdiction under Federal Rule of Civil Procedure 12(b)(1).” Maya v.
    Centex Corp., 
    658 F.3d 1060
    , 1067 (9th Cir. 2011). The former is a
    determination on the merits, while the latter is purely jurisdictional.
    While we believe Cetacean was incorrectly decided, it is binding
    circuit precedent that non-human animals enjoy constitutional standing to
    pursue claims in federal court. See 
    Cetacean, 386 F.3d at 1175
    –76; see
    also Ctr. for Auto Safety v. Chrysler Grp., LLC, 
    809 F.3d 1092
    , 1106 (9th
    Cir.), cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S.
    Ct. 38, 
    196 L. Ed. 2d 26
    (2016) (“While we have the authority to
    distinguish precedent on a principled basis, we are not free to ignore the
    literal meaning of our rulings, even when the panel believes the precedent
    is ‘unwise or incorrect.’”) (quoting Hart v. Massanari, 
    266 F.3d 1155
    ,
    1170 (9th Cir. 2001)). Although we must faithfully apply precedent, we
    are not restrained from pointing out, when we conclude after reasoned
    consideration, that a prior decision of the court needs reexamination. This
    is such a case.
    Animals have neither constitutional nor statutory standing. Article III
    standing “often turns on the nature and source of the claim asserted.”
    Warth v. Seldin, 
    422 U.S. 490
    , 500 (1975). Other than Cetacean, no case
    has held that animals have constitutional standing to pursue claims in
    federal court. See e.g., Tilikum ex rel. People for the Ethical Treatment
    of Animals, Inc. v. Sea World Parks & Entm’t, Inc., 
    842 F. Supp. 2d 1259
    (S.D. Cal. 2012) (Thirteenth Amendment prohibition on slavery and
    NARUTO V. SLATER                                15
    copyright infringement.
    III.     Statutory Standing under the Copyright Act
    In Cetacean, this court stated the following with respect
    to statutory standing for animals:
    We agree with the district court in Citizens to
    End Animal Suffering & Exploitation, Inc.,
    that “[i]f Congress and the President intended
    to take the extraordinary step of authorizing
    animals as well as people and legal entities to
    sue, they could, and should, have said so
    plainly.” In the absence of any such statement
    in the ESA, the MMPA, or NEPA, or the
    APA, we conclude that the Cetaceans do not
    have statutory standing to sue.
    involuntary servitude applied only to humans, and thus whales lacked
    Article III standing to bring action against operator of theme park under
    Thirteenth Amendment). Prior to Cetacean, no court ever intimated that
    animals possess interests that can form the basis of a case or controversy.
    As to statutory standing, Congress has never provided that animals may
    sue in their own names in federal court, and there is no aspect of federal
    law (other than Cetacean) that has ever recognized that animals have the
    right to sue in their own name as a litigant. To that point, Rule 17(a)
    requires that the suit be brought in the name of the “party in interest”; and
    that next friend or guardian representation obtains only for a person. See
    Fed. R. Civ. P. 17(c). Because animals do not possess cognizable
    interests, it stands to reason that they cannot bring suit in federal court in
    their own names to protect such interests unless Congress determines
    otherwise.
    16                       NARUTO V. SLATER
    
    Id. at 1179
    (emphasis added).8 The court in Cetacean did not
    rely on the fact that the statutes at issue in that case referred
    to “persons” or “individuals.” 
    Id. Instead, the
    court crafted a
    simple rule of statutory interpretation: if an Act of Congress
    plainly states that animals have statutory standing, then
    animals have statutory standing. If the statute does not so
    plainly state, then animals do not have statutory standing. The
    Copyright Act does not expressly authorize animals to file
    copyright infringement suits under the statute.9 Therefore,
    8
    In Citizens to End Animal Suffering & Exploitation, Inc. v. New
    England Aquarium, 
    836 F. Supp. 45
    , 49 (D. Mass. 1993), a dolphin and
    several animal-rights organizations filed suit against the United States
    Department of the Navy and the Department of Commerce under the
    Marine Mammal Protection Act (MMPA). The plaintiffs alleged that the
    dolphin’s transfer from the New England Aquarium to the Department of
    the Navy violated its rights under the MMPA. Without distinguishing
    between “statutory standing” and Article III standing, the district court
    granted the defendants’ motion for summary judgment because the
    dolphin lacked standing to sue under the MMPA. 
    Id. (“This court
    will not
    impute to Congress or the President the intention to provide standing to a
    marine mammal without a clear statement in the statute.”). The plaintiffs
    did not file an appeal. 
    Id. 9 PETA
    also argues that the Copyright Act contemplates statutory
    standing for animals because it permits statutory standing for corporations
    and unincorporated associations without express authorization for those
    non-human entities. That argument does not refute the requirement,
    established in Cetacean, that Congress plainly state any grant of statutory
    standing to animals. Also, the Supreme Court has held corporations to be
    “persons” for standing, both for constitutional and statutory purposes. See,
    e.g., Citizens United v. Fed. Election Comm’n, 
    558 U.S. 310
    , 341–42
    (2010) (concluding that corporations—associations of persons—have
    speech rights under the First Amendment); Burwell v. Hobby Lobby
    Stores, Inc., 
    134 S. Ct. 2751
    , 2768 (2014) (concluding that the plaintiff
    corporation was a “person” under the Religious Freedom Restoration Act
    of 1993). Moreover, corporations and unincorporated associations are
    formed and owned by humans; they are not formed or owned by animals.
    NARUTO V. SLATER                                17
    based on this court’s precedent in Cetacean, Naruto lacks
    statutory standing to sue under the Copyright Act.10
    Several provisions of the Copyright Act also persuade us
    against the conclusion that animals have statutory standing to
    sue under the Copyright Act. See Davis v. Mich. Dep’t of
    Treasury, 
    489 U.S. 803
    , 809 (1989) (“It is a fundamental
    canon of statutory construction that the words of a statute
    must be read in their context and with a view to their place in
    the overall statutory scheme.”). For example, the “children”
    of an “author,” “whether legitimate or not,” can inherit
    certain rights under the Copyright Act. See 17 U.S.C. §§ 101,
    201, 203, 304. Also, an author’s “widow or widower owns
    the author’s entire termination interest unless there are any
    surviving children or grandchildren of the author, in which
    case the widow or widower owns one-half of the author’s
    interest.” 
    Id. § 203(a)(2)(A).
    The terms “children,”
    “grandchildren,” “legitimate,” “widow,” and “widower” all
    imply humanity and necessarily exclude animals that do not
    marry and do not have heirs entitled to property by law.
    Based on this court’s decision in Cetacean and the text of the
    See Bank of the U.S. v. Deveaux, 
    9 U.S. 61
    , 92 (1806) (looking to “the
    character of the individuals who compose the corporation” in recognizing
    for the first time the capacity of corporations to sue in federal court).
    10
    PETA also argues that Cetacean is distinguishable because the
    statutes at issue in Cetacean represented a waiver of the United States’
    sovereign immunity, and such waivers, unlike the Copyright Act, are
    narrowly construed. See United States v. Nordic Vill., Inc., 
    503 U.S. 30
    ,
    34 (1992) (“[T]he Government’s consent to be sued ‘must be construed
    strictly in favor of the sovereign’ . . . .”) (citation omitted). However this
    court never mentioned sovereign immunity in Cetacean, nor did it imply
    that it narrowly construed the statutory language of the four statutes at
    issue under the canon of construction described by PETA to reach its
    decision.
    18                        NARUTO V. SLATER
    Copyright Act as a whole, the district court did not err in
    concluding that Naruto—and, more broadly, animals other
    than humans—lack statutory standing to sue under the
    Copyright Act.
    IV.        Attorneys’ Fees
    Counsel for Slater and Wildlife requests that the court
    grant him appellate-stage attorneys’ fees and remand to the
    district court for the determination of the amount of those
    fees.11 Counsel for Slater and Wildlife is entitled to
    attorneys’ fees and costs for this appeal. See Fogerty v.
    Fantasy, Inc., 
    510 U.S. 517
    , 534 n.19 (1994). Thus, the
    request in the answering brief by Slater and Wildlife for an
    award of attorneys’ fees on appeal is granted.12 The
    determination of an appropriate amount of fees on appeal is
    transferred to the district court pursuant to Ninth Circuit Rule
    39-1.8.
    AFFIRMED.
    11
    See 17 U.S.C. § 505 (“In any civil action under this title, the court
    in its discretion may allow the recovery of full costs by or against any
    party other than the United States or an officer thereof. Except as
    otherwise provided by this title, the court may also award a reasonable
    attorney’s fee to the prevailing party as part of the costs.”). By stipulation,
    the parties have deferred the determination of trial-stage attorneys’ fees
    until the resolution of this appeal.
    12
    We do not speculate on the effect that any settlement agreement,
    such as that mentioned in the joint motion to dismiss and vacate, may have
    on Appellees’ ability to realize any such award. We note that the joint
    motion recited that Appellant Naruto was not a party to the settlement
    agreement.
    NARUTO V. SLATER                               19
    N.R. SMITH, Circuit Judge, concurring in part:
    I concur that this case must be dismissed. Federal courts
    do not have jurisdiction to hear this case at all. Because the
    courts lack jurisdiction, the appeal should be dismissed and
    the district court’s judgment on the merits should be vacated.
    Coal. of Clergy, Lawyers, & Professors v. Bush, 
    310 F.3d 1153
    , 1162–65 (9th Cir. 2002) (“Because we conclude that
    the Coalition lacks [next-friend or third-party] standing, we
    decline to reach the remaining questions addressed by the
    district court . . . . We therefore vacate those portions of the
    district court’s opinion which reached those questions.”).
    Indeed, where there is no standing, any further ruling “is, by
    very definition, for a court to act ultra vires.” 
    Id. at 1165
    (quoting Steel Co. v. Citizens for a Better Env’t, 
    523 U.S. 83
    ,
    101–02 (1998)). The Majority misses this point. I write to
    express my disagreement with the Majority’s conclusion that
    next-friend standing1 is nonjurisdictional.2
    1
    People for the Ethical Treatment of Animals, Inc. (PETA) grounded
    the jurisdiction for this suit in the next-friend standing doctrine. As
    pleaded: “[PETA] brings this action on behalf of, and as next friend[] to,
    Naruto, pursuant to Rule 17(b) of the Federal Rules of Civil Procedure,
    because Naruto’s rights cannot be effectively vindicated except through
    an appropriate representative.” Complaint at 3, Naruto v. Slater, No. 15-
    cv-04324 (N.D. Cal. Sept. 21, 2015).
    Next-friend standing is an “alternative basis for standing” where the
    litigant pursues the action on behalf of the “real party in interest.”
    Whitmore v. Arkansas, 
    495 U.S. 149
    , 161–63 (1990). Next-friend standing
    requires (1) “an adequate explanation—such as inaccessibility, mental
    incompetence, or other disability—why the real party in interest cannot
    appear on his own behalf to prosecute the action”; and (2) “the ‘next
    friend’ must be truly dedicated to the best interests of the person on whose
    behalf he seeks to litigate, and it has been further suggested that a ‘next
    20                      NARUTO V. SLATER
    As the Majority opinion highlights in its treatment of the
    merits, PETA brought a frivolous lawsuit here. The argument
    that animals have statutory standing to maintain a Copyright
    Act claim—or any property right claims—is an easy question.
    Under the holding in Cetacean Community v. Bush, 
    386 F.3d 1169
    (9th Cir. 2004), the Copyright Act, and basic property
    law, animals have no such rights.
    However, to reach its conclusion on the Copyright Act
    question, the Majority ignores its own conclusion regarding
    standing, instead determining that: (1) next-friend standing is
    nonjurisdictional; and (2) even if the elements of next-friend
    standing are not met, any third-party may still bring suit on
    behalf of anyone or anything—without the real party in
    interest’s permission—as long as (A) the real party in interest
    has an Article III injury; and (B) the real party in interest is
    “adequately protected” by the purported next friend’s (or self-
    appointed lawyer’s) representation. Maj. Op. at 9–11. That
    determination fails to follow United States Supreme Court or
    Ninth Circuit precedent. Let me explain.
    friend’ must have some significant relationship with the real party in
    interest.” 
    Id. at 163–64
    (internal citations omitted).
    2
    The Majority states that “Naruto’s Article III standing under
    Cetacean is not dependent on PETA’s sufficiency as a guardian or ‘next
    friend.’” Maj. Op. at 11. Put another way, the Majority simply says that
    lack of next-friend standing is nonjurisdictional, and (regardless of
    “PETA’s sufficiency” to advance Naruto’s claim) it may nonetheless
    resolve this case.
    NARUTO V. SLATER                       21
    The Supreme Court was explicit:
    The burden is on the “next friend” clearly to
    establish the propriety of his status and
    thereby justify the jurisdiction of the court.
    These limitations on the “next friend”
    doctrine are driven by the recognition that
    “[i]t was not intended that the writ of habeas
    corpus should be availed of, as matter of
    course, by intruders or uninvited meddlers,
    styling themselves next friends.” Indeed, if
    there were no restriction on “next friend”
    standing in federal courts, the litigant
    asserting only a generalized interest in
    constitutional governance could circumvent
    the jurisdictional limits of Art. III simply by
    assuming the mantle of “next friend.”
    
    Whitmore, 495 U.S. at 164
    (emphasis added & internal
    citations omitted) (quoting United States ex rel. Bryant v.
    Houston, 
    273 F. 915
    , 916 (2d Cir. 1921)). We have also been
    explicit: failing to meet the standing requirements for next-
    friend standing removes jurisdiction of the court. 
    Coalition, 310 F.3d at 1162
    –65 (dismissing case and vacating lower
    ruling which reached the merits, after finding there was no
    next-friend standing); see also Massie ex rel. Kroll v.
    Woodford, 
    244 F.3d 1192
    , 1198–99 (9th Cir. 2001) (per
    curiam) (dismissing emergency motion for a stay of
    execution because purported next friend failed to meet the
    standing requirements).
    To buttress these conclusions, I (1) outline the basics of
    Article III standing and the next friend exception to Article
    22                   NARUTO V. SLATER
    III standing; (2) summarize the Majority’s reasoning and
    decision; and (3) demonstrate the legal errors in the Majority
    opinion.
    I. The basics of Article III standing and next-friend
    standing.
    Article III of the United States Constitution limits the
    Federal Judiciary’s power to “cases” and “controversies.”
    U.S. Const. Art. III, § 2, cl. 1. The “doctrine of standing” is
    one of the “landmarks” that “set[s] apart the ‘Cases’ and
    ‘Controversies’ that are of the justiciable sort referred to in
    Article III—‘serving to identify those disputes which are
    appropriately resolved through the judicial process.’” Lujan
    v. Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992) (original
    alterations omitted) (quoting 
    Whitmore, 495 U.S. at 155
    ); see
    also Warth v. Seldin, 
    422 U.S. 490
    , 498 (1975) (“In its
    constitutional dimension, standing imports justiciability:
    whether the plaintiff has made out a ‘case or controversy’
    between himself and the defendant within the meaning of Art.
    III.”); 
    Coalition, 310 F.3d at 1157
    (“At its constitutional core,
    standing is a manifestation of the Article III case-or-
    controversy requirement; it is the determination of whether a
    specific person is the proper party to invoke the power of a
    federal court.” (emphasis added)). “[T]he core component of
    standing is an essential and unchanging part of the case-or-
    controversy requirement of Article III.” 
    Lujan, 504 U.S. at 560
    . Accordingly, the Supreme Court has “deduced a set of
    requirements that together make up the ‘irreducible
    constitutional minimum of standing.’” Lexmark Int’l, Inc. v.
    Static Control Components, Inc., 
    134 S. Ct. 1377
    , 1386
    (2014) (quoting 
    Lujan, 504 U.S. at 560
    ).
    NARUTO V. SLATER                                23
    Part of the Article III case-or-controversy requirement is
    the obvious derivative premise that “the plaintiff generally
    must assert his own legal rights and interests.” 
    Warth, 422 U.S. at 499
    (citing Tileston v. Ullman, 
    318 U.S. 44
    , 46
    (1943); United States v. Raines, 
    362 U.S. 17
    , 21 (1960);
    Barrows v. Jackson, 
    346 U.S. 249
    , 255 (1953)); see also
    Sessions v. Morales-Santana, 
    137 S. Ct. 1678
    , 1689 (2017)
    (“Ordinarily, a party must assert his own legal rights and
    cannot rest his claim to relief on the legal rights of third
    parties.” (alterations, internal quotation marks, and citations
    omitted)); Caplin & Drysdale, Chartered v. United States,
    
    491 U.S. 617
    , 623 n.3 (1989) (identifying that “whether the
    litigant suffered some injury-in-fact, adequate to satisfy
    Article III’s case-or-controversy requirement” is the first of
    two questions the Court asks “[w]hen a person or entity seeks
    standing to advance the constitutional rights of others”).
    “This Court, as is the case with all federal courts, ‘has no
    jurisdiction to pronounce any statute, either of a state or of
    the United States, void, because irreconcilable with the
    constitution, except as it is called upon to adjudge the legal
    rights of litigants in actual controversies.” 
    Raines, 362 U.S. at 21
    (emphasis added).
    With only a single, narrow exception, a person filing a
    claim must assert a personal injury in fact3 to establish
    3
    Even in third-party standing (where a party has an Article III injury,
    but she must advance someone else’s rights to achieve redress), the
    plaintiff must have suffered an injury. See, e.g., Kowalski v. Tesmer,
    
    543 U.S. 125
    , 129 n.2 (2004) (assuming without deciding that plaintiffs
    alleged an adequate individual injury to satisfy the “constitutional
    minimum of standing” before continuing to address the standards for
    permitting a third party “to assert the rights of another”); Lexmark Int’l,
    
    Inc., 134 S. Ct. at 1387
    n.3 (noting cases articulating that the Article III
    basis for third-party standing is “closely related to the question whether a
    24                       NARUTO V. SLATER
    standing. 
    Lujan, 504 U.S. at 560
    –61. This exception is next-
    friend standing, where a third-party—without alleging its own
    injury—is allowed to bring suit on behalf of the named-party,
    who is either (1) an incompetent or minor; or (2) unable to
    access the courts because of imprisonment. With next-friend
    standing, the party in interest has an Article III injury, but
    because of the disabling aspect (minority, incompetence, or
    imprisonment), the real party cannot advance the action,
    except where another person (the next friend) stands in and
    advances the cause on the actual party’s behalf. 
    Whitmore, 495 U.S. at 161
    –66.
    A. The basics of next-friend standing.
    The Supreme Court considers next-friend standing an
    “alternative basis” for standing in federal courts. 
    Id. at 161.
    Specifically, it has “long been an accepted basis for
    jurisdiction in certain circumstances.” 
    Id. at 162.
    These
    “certain circumstances” are deeply rooted in history and
    narrowly limited to: (1) habeas corpus actions; and
    (2) “infants, other minors, and adult mental incompetents.”
    
    Id. at 163,
    163 n.4.
    Next-friend standing allows a third-party to singularly
    advance a cause of action on another’s behalf. “A ‘next
    friend’ does not himself become a party to the . . . action in
    which he participates, but simply pursues the cause on behalf
    person in the litigant’s position will have a right of action on the claim.”)
    (quoting Dep’t of Labor v. Triplett, 
    494 U.S. 715
    , 721 n.** (1990))). In
    this case, PETA does not (nor could it) allege either individual or third-
    party standing. It does not have any cognizable Article III injury for the
    alleged Copyright Act violations against Naruto. Hence, I do not further
    address either of these bases for standing.
    NARUTO V. SLATER                         25
    of the . . . real party in interest.” 
    Id. at 163.
    To invoke next-
    friend standing, the purported next friend must establish:
    (1) “an adequate explanation—such as inaccessibility, mental
    incompetence, or other disability—why the real party in
    interest cannot appear on his own behalf to prosecute the
    action”; and (2) “the ‘next friend’ must be truly dedicated to
    the best interests of the person on whose behalf he seeks to
    litigate, and it has been further suggested that a ‘next friend’
    must have some significant relationship with the real party in
    interest.” 
    Id. at 163–64
    (internal citations omitted). I agree
    with the Majority that there is no question PETA did not
    allege—in any way—sufficient facts to establish it could be
    Naruto’s next friend.
    B. Next-friend standing cannot apply to animals.
    I also agree with the Majority that animals cannot be
    represented by a next friend; I write to expand on the
    reasoning provided in the Majority opinion.
    1. Next-friend standing for animals is barred by
    Supreme Court precedent.
    The Supreme Court has clearly delineated the limits of
    next-friend standing: “[T]he scope of any federal doctrine of
    ‘next friend’ standing is no broader than what is permitted by
    . . . the historical practice.” 
    Id. at 164–65;
    cf. Town of Greece
    v. Galloway, 
    134 S. Ct. 1811
    , 1818–19 (2014) (recognizing
    legislative prayer as a “historical” exception to the
    Establishment Clause); District of Columbia v. Heller,
    
    554 U.S. 570
    , 626–27, 627 n.26, 626 (2008) (“[N]othing in
    our opinion should be taken to cast doubt on the longstanding
    prohibitions on the possession of firearms by felons and the
    mentally ill[.]” (emphasis added)). The Supreme Court noted
    26                     NARUTO V. SLATER
    the two illustrations allowed by such “historical practice”:
    imprisoned individuals using habeas corpus and mental
    incompetents or minors. 
    Whitmore, 495 U.S. at 161
    –63, 163
    n.4; see also 28 U.S.C. § 2242 (codifying next-friend
    standing for habeas corpus actions; Fed. R. Civ. P. 17(c)(2)
    (permitting next-friend standing for a “minor or an
    incompetent person who does not have a duly appointed
    representative” (emphasis added)). However, there is no
    historical evidence that animals have ever been granted
    authority to sue by next friend and, absent an act of
    Congress,4 it would be improper to expand this narrow
    exception to the actual injury requirement of Article III.
    2. There is no textual support in either the habeas
    corpus statute or Rule 17 for animal next
    friends.
    Neither of the two existing grounds for next-friend
    standing allow animal next-friend standing. First, a writ for
    habeas corpus “shall be in writing signed and verified by the
    person for whose relief it is intended or by someone acting in
    his behalf.” 
    28 U.S. C
    . § 2242 (emphasis added). Therefore,
    textually, only a natural person can have a petition filed on
    her behalf. Further, any argument that animals are akin to
    “artificial persons” such as corporations, which are allowed
    to sue, see e.g., 
    Cetacean, 386 F.3d at 1176
    (concluding that
    animals are no different from various “artificial persons” such
    as ships or corporations), makes no sense in the context of
    4
    Even if such a statute were enacted, such a statutory grant of
    standing would still need meet the Article III standing “case or
    controversy” requirement. Because it would lack the pre-constitutional
    historical use like habeas actions or actions on behalf of minors or
    incompetent persons, I have grave doubts this would succeed.
    NARUTO V. SLATER                         27
    28 U.S.C. § 2242. Corporations cannot be imprisoned and,
    thus, there is no grounds to conclude “person” in 28 U.S.C.
    § 2242 could include anything other than natural persons.
    Second, the Federal Rules only authorize next friend suits
    on behalf of “a minor or an incompetent person.” Fed. R. Civ.
    P 17(c) (emphasis added). Per the text, this can only apply to
    human persons, not any “minor” or “incompetent”
    corporations or animals. Importantly, the historical
    background of Rule 17(c) limits the use of next friends to
    only human persons. Rule 17(c) incorporated Rule 70 of the
    Federal Equity Rules into the Federal Rules of Civil
    Procedure. Fed. R. Civ. P. 17(c), Note to Subdivision (c).
    Rule 70 specifically provided, “All infants and other persons
    so incapable may sue by their guardians, if any, or by their
    prochei ami [next friend].” Fed. Equity R. 70. Finally, the
    provisions for corporate capacity are articulated in Rule
    17(b). Fed. R. Civ. P. 17(b). This separate enumeration of
    rules for non-human entities, Rule 17(b), is a clear textual
    indication that the use of the term “person” in Rule 17(c) does
    not include non-human entities, such as corporations or
    animals.
    3. Allowing next-friend standing for animals
    would violate the public policy behind next-
    friend standing.
    In addition to its historical limits, next-friend standing is
    narrowly tailored in light of the public policy concerns
    associated with expanding the doctrine. Next-friend standing
    “is by no means granted automatically to whomever seeks to
    pursue an action on behalf of another.” 
    Whitmore, 495 U.S. at 163
    . “Indeed, if there were no restriction on ‘next friend’
    standing in federal courts, the litigant asserting only a
    28                       NARUTO V. SLATER
    generalized interest in constitutional governance could
    circumvent the jurisdictional limits of Art. III simply by
    assuming the mantle of ‘next friend.’” 
    Id. at 164.
    The specific
    requirements to become a next friend are intended to keep
    “intruders or uninvited meddlers, styling themselves next
    friends” out of the courts. 
    Id. at 164
    (quoting 
    Houston, 273 F. at 916
    ). Moreover, as Chief Justice Rehnquist (writing as the
    sole justice for the Supreme Court on a stay of execution)
    similarly noted: “however worthy and high minded the
    motives of ‘next friends’ may be, they inevitably run the risk
    of making the actual defendant a pawn to be manipulated on
    a chessboard larger than his own case.” Lenhard v. Wolff,
    
    443 U.S. 1306
    , 1312 (1979).
    Animal-next-friend standing is particularly susceptible to
    abuse. Allowing next-friend standing on behalf of animals
    allows lawyers (as in Cetacean) and various interest groups
    (as here) to bring suit on behalf of those animals or objects
    with no means or manner to ensure the animals’ interests are
    truly being expressed or advanced. Such a change would
    fundamentally alter the litigation landscape. Institutional
    actors could simply claim some form of relationship to the
    animal or object to obtain standing and use it to advance their
    own institutional goals with no means to curtail those actions.
    We have no idea whether animals or objects wish to own
    copyrights or open bank accounts to hold their royalties from
    sales of pictures. To some extent, as humans, we have a
    general understanding of the similar interests of other
    humans.5 In the habeas corpus context, we presume other
    5
    I intentionally do not refer to the human-controlled entities such as
    corporations or ships, because those entities never have next-friend
    standing. They have corporate officers or owners to advance their claims.
    Indeed, a shareholder, who would likely meet the next-friend standing
    NARUTO V. SLATER                              29
    humans desire liberty. Similarly, in actions on behalf of
    infants, for example, we presume the infant would want to
    retain ownership of the property she inherited. But the
    interests of animals? We are really asking what another
    species desires. Do animals want to own property, such as
    copyrights? Are animals willing to assume the duties
    associated with the rights PETA seems to be advancing on
    their behalf?6 Animal-next-friend standing is materially
    different from a competent person representing an
    incompetent person. We have millennia of experience
    understanding the interests and desire of humankind. This is
    not necessarily true for animals. Because the “real party in
    interest” can actually never credibly articulate its interests or
    goals, next-friend standing for animals is left at the mercy of
    the institutional actor to advance its own interests, which it
    imputes to the animal or object with no accountability. This
    literally creates an avenue for what Chief Justice Rehnquist
    feared: making the actual party in interest a “pawn to be
    requirements, generally cannot even bring a suit on behalf of the
    corporation. See e.g., Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd.,
    
    493 U.S. 331
    , 336 (1990) (holding that “generally . . . shareholders [are
    prohibited] from initiating actions to enforce the rights of the
    corporation”).
    6
    Participation in society brings rights and corresponding duties. The
    right to own property is not free from duties. One must pay taxes on
    profits from a royalty agreement for use of a copyrighted image. Are
    animals capable of shouldering the burden of paying taxes? Similarly, all
    people have a duty to obey the law and, for example, not commit
    intentional torts. Should animals liable for intentional torts as well? The
    concept of expanding actual property rights—and rights broadly—to
    animals necessitates resolving what duties also come with those rights
    and, because animals cannot communicate in our language, who stands in
    their shoes?
    30                         NARUTO V. SLATER
    manipulated on a chessboard larger than his own case.”
    
    Lenhard, 443 U.S. at 1312
    .
    II. The Majority opinion.
    Although the Majority opinion recognizes these
    principles, it ignores them. The Majority opinion states that
    animals cannot have next-friend standing, but it nevertheless
    determines that, because Naruto has an Article III injury and
    he is “adequately protected,” the Majority may proceed to
    determine the merits of Naruto’s statutory standing claim
    under the Copyright Act. Maj. Op. at 9–15. In order to get
    there, the Majority concludes that next-friend standing is
    nonjurisdictional: “[W]e 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,” and concludes that “Naruto’s Article III
    standing under Cetacean is not dependent on PETA’s
    sufficiency as a guardian or ‘next friend.’” Maj. Op. at 10, 11.
    I admit that the basis for the Majority’s conclusion is
    primarily grounded in its reading of Cetacean, in which a
    “self-appointed attorney” brought a suit on behalf of the
    world’s 
    cetaceans. 386 F.3d at 1171
    –72. Cetacean concluded
    that animals may have an Article III injury—but, notably, did
    not examine whether next-friend standing was present. Given
    this analysis, the Majority concludes that, because the
    Cetacean panel allowed the case to go forward, it implicitly
    held that next-friend standing is nonjurisdictional. Maj. Op.
    at 11.
    The Majority’s conclusion on the first point—animals can
    never have next-friend standing—is correct7 and should end
    7
    As such, I concur in the Majority’s opinion to that extent.
    NARUTO V. SLATER                         31
    our inquiry. See infra. On the other hand, the second
    conclusion (that next-friend standing is nonjurisdictional) is
    not supportable. This conclusion is incorrect and the
    consequences associated with the Majority’s holding are
    avoidable, if we follow precedent.
    III.      The Majority’s conclusion that next-friend
    standing is nonjurisdictional is legally
    unsupportable.
    A. The Majority’s second conclusion violates
    Supreme Court and Ninth Circuit Precedent.
    Both the United States Supreme Court and our Circuit
    have held next-friend standing is jurisdictional. In Whitmore,
    the petitioner brought suit on behalf of another death-row
    prisoner, Ronald 
    Simmons. 495 U.S. at 152
    –54. Whitmore
    asserted both third-party standing and next-friend standing to
    justify the suit. 
    Id. at 153–54.
    The Supreme Court held that
    Whitmore failed both standing tests and, ultimately held that
    “Jonas Whitmore lacks standing to proceed in this Court, and
    the writ of certiorari is dismissed for want of jurisdiction.” 
    Id. at 166
    (emphasis added). The Supreme Court also clearly
    held that any purported next friend bears the burden “clearly
    to establish the propriety of his status and thereby justify the
    jurisdiction of the court.” 
    Id. at 164
    (emphasis added) (citing
    Mo. Pub. Def. Comm’n ex rel. Smith v. Armontrout, 
    812 F.2d 1050
    , 1053 (8th Cir. 1987); Grouseclose ex rel. Harries v.
    Dutton, 
    594 F. Supp. 949
    , 952 (M.D. Tenn. 1984)); see also
    Demosthenes v. Baal, 
    495 U.S. 731
    , 737 (1990) (holding that
    “federal courts must make certain that an adequate basis
    exists for the exercise of federal power” and dismissing the
    suit for failure to demonstrate next-friend standing).
    32                       NARUTO V. SLATER
    We have also held that next-friend standing is
    jurisdictional. In Coalition, a coalition of clergy, lawyers, and
    professors brought suit on behalf of the prisoners detained in
    Guantanamo, 
    Cuba. 310 F.3d at 1156
    . The district court held
    that the Coalition did not have standing and, even if they did,
    no federal district court—including itself—could have
    jurisdiction over such a suit. 
    Id. On appeal,
    we agreed that the
    Coalition could not establish next-friend standing. 
    Id. However, we
    noted that “[t]he question before us is not the
    scope of the rights and privileges of the detainees themselves
    under either our Constitution or other international laws or
    agreements.” 
    Id. at 1164.
    Rather, we “consider[ed] only the
    rights of the members of the Coalition to assert standing on
    behalf of the detainees and to seek habeas review of their
    detention.” 
    Id. at 1165
    (emphasis added). We then dismissed
    the suit and vacated the district court’s other holding that no
    court, or itself, may entertain a habeas action on behalf of a
    detainee held in Guantanamo, Cuba. 
    Id. Additional Circuit
    precedent stands for the same proposition. See 
    Massie, 244 F.3d at 1199
    (affirming the district court’s conclusion
    that a litigant seeking a stay of execution on behalf of another
    person “lacked standing” as a next friend under Whitmore).8
    8
    The Majority argues that I err by using next-friend cases to conclude
    that we lack jurisdiction in this case. Maj. Op. at 11–12 n.5. But, next-
    friend standing is the only basis for jurisdiction PETA has alleged. Compl.
    at 3 (stating PETA “b[rought] this action on behalf of, and as next friend[]
    to, Naruto”). Both the Majority and I agree that PETA does not have next-
    friend standing and that animals can never have next-friend standing. This
    should end our inquiry. Further, as a general rule, the proponent of a case
    must advance its own injury. 
    Warth, 422 U.S. at 499
    . Next-friend standing
    is an exception to this rule. 
    Whitmore, 495 U.S. at 161
    –63. Naruto did not
    bring his own claim, PETA does not assert its own injury, and both the
    Majority and I agree PETA cannot be Naruto’s next friend. There are no
    other jurisdictional bases on which to rest our authority to resolve this
    case.
    NARUTO V. SLATER                               33
    B. Standing must be jurisdictional because of its
    preclusive effect.
    Judgments are preclusive. See, e.g., Owens v. Kaiser
    Found. Health Plan, Inc., 
    244 F.3d 708
    , 713 (9th Cir. 2001)
    (“Res judicata, also known as claim preclusion, bars litigation
    in a subsequent action of any claims that were raised or could
    have been raised in the prior action.” (citations omitted)). If
    the putative next friend is not the appropriate entity, but the
    case is allowed to go forward, an improper representative can
    create preclusive precedent that, forever, bars the real party
    in interest. This preclusive effect alone requires that the
    question of next-friend standing be decided before the merits
    question and, if there is no next-friend standing, the case must
    be dismissed so the proper party may bring the case if she so
    chooses.
    C. Cetacean did not impliedly overrule Coalition or
    Whitmore.9
    The Majority’s conclusion that Cetacean somehow makes
    next-friend standing nonjurisdictional tortures the case and
    legal reasoning to reach such a conclusion. First, both
    Whitmore and Coalition were decided before Cetacean.
    9
    The Majority accuses me of “pretend[ing] Cetacean does not exist,
    or that it states something other, or milder, or more ambiguous on whether
    cetaceans have Article III standing” and arguing for a “blanket exclusion
    of animals from Article III jurisdiction.” Maj. Op. at 11–12 n.5, 13 n.6.
    My conclusion does not “pretend Cetacean does not exist”; it simply
    requires Cetacean be applied within the legal framework that governs
    cases where a plaintiff’s claims are brought by someone else. Such claims
    may only be advanced by a next friend and, if one is not available or
    legally possible, those claims cannot be redressed. As I demonstrate in this
    section, Cetacean does not hold to the contrary.
    34                      NARUTO V. SLATER
    Accordingly, those binding cases, which directly answer the
    question of whether next-friend standing is jurisdictional,
    were binding on the Cetacean panel as well.
    Second, Cetacean is silent on next-friend standing.
    Indeed, even the briefing did not raise the issue. Rather, the
    Cetacean court seemed to conclude that animals may have
    Article III standing,10 and then examined the statutory
    standing questions before 
    it. 386 F.3d at 1174
    –79. The
    Cetacean court did not (though it most certainly should have)
    examine whether it was appropriate for a “self-appointed
    attorney” to bring a case on behalf of the “Cetacean
    Community” and articulate “their” interests. 
    Id. at 1171–72.
    There can be no reasonable argument that the lawyer in
    Cetacean spoke to, and received instructions from his client,
    the “Cetacean Community.” Rather, he functioned as a
    purported next friend, arguing that certain Navy sonar
    technology injured the members of the “Cetacean
    Community.” 
    Id. Third, it
    is simply incorrect to conclude that an implied
    holding from a case that did not even address the
    question—in any form—somehow overrules explicit prior
    United States Supreme Court and Ninth Circuit precedent.
    “[U]nstated assumptions on non-litigated issues are not
    precedential holdings binding future decisions.” Sakamoto v.
    Duty Free Shoppers, Ltd., 
    764 F.2d 1285
    , 1288 (9th Cir.
    1985); see also Morales-Garcia v. Holder, 
    567 F.3d 1058
    ,
    1064 (9th Cir. 2009) (stating that panels are bound by “prior
    decision[s],” but “the term ‘decision,’ however, encompasses
    only those issues that are raised or discussed” (citations
    10
    Although binding precedent, I agree with the Majority that granting
    Article III standing to animals was an incorrect conclusion.
    NARUTO V. SLATER                        35
    omitted)). Indeed, Cetacean itself noted: “‘[W]here a panel
    confronts an issue germane to the eventual resolution of the
    case, and resolves it after reasoned consideration in a
    published opinion, that ruling becomes the law of the circuit,
    regardless of whether doing so is necessary in some strict
    logical sense.’” 
    Cetacean, 386 F.3d at 1173
    (emphasis added)
    (quoting United States v. Johnson, 
    256 F.3d 895
    , 914 (9th
    Cir. 2001) (Kozinski, J., concurring)); see also Brecht v.
    Abrahamson, 
    507 U.S. 619
    , 630–31 (1993) (refusing to
    follow prior cases where the issue had not been “squarely
    addressed”). Rather, the appropriate reading of Cetacean,
    because a three-judge panel cannot overrule a prior panel, see
    Miller v. Gammie, 
    335 F.3d 889
    , 899 (9th Cir. 2003) (en
    banc), is that the Cetacean panel (1) ought not have reached
    the question it did; and (2) the fact that it seemed to conclude
    that an animal may have Article III standing does not remove
    the appropriate standing question that determines if the next
    friend may bring the action at all. It is simply unsupportable
    to conclude that a panel that did not address an issue
    somehow overrules prior binding decisions that did address
    the issue.
    Fourth, the simple fact that Cetacean found that animals
    could have an Article III injury does not, automatically,
    create some form of right for third-parties to advance those
    claims (or, make next-friend standing nonjurisdictional and,
    as the Majority holds, simply inapplicable)! There are a
    multitude of Article III injuries that occur regularly, which
    people choose not to pursue. Because the individual with the
    injury opts not to pursue the claim does not somehow make
    the injury “public domain,” so any random entity may bring
    the claim. Next-friend standing serves as a bar to such
    meddling, and Cetacean did not impliedly eviscerate that
    conclusion.
    36                    NARUTO V. SLATER
    Not only did Cetacean not address animal next-friend
    standing, but no court has ever done so. See Mount Graham
    Red Squirrel v. Madigan, 
    954 F.2d 1441
    , 1448 n.13 (9th Cir.
    1992) (“No party has mentioned and, notwithstanding our
    normal rules, we do not consider, the standing of the first-
    named party [Mount Graham Red Squirrel] to bring this
    action.”); Palila v. Hawaii Dep’t of Land & Nat. Res.,
    
    852 F.2d 1106
    , 1107 (9th Cir. 1988) (“As an endangered
    species . . . , the bird . . . also has legal status and wings its
    way into federal court as a plaintiff in its own right.”
    (emphasis added)), abrogated in part by, 
    Cetacean, 386 F.3d at 1173
    (9th Cir. 2004) (“Palila IV’s statements [regarding
    standing] are nonbinding dicta.”); Citizens to End Animal
    Suffering & Exploitation, Inc. v. New England Aquarium,
    
    836 F. Supp. 45
    , 49–50 (D. Mass. 1993) (finding named
    dolphin, Kama, lacked standing because “[t]he MMPA does
    not authorize suits brought by animals,” and addressing the
    fact that Rule 17(b) would hold that animals lack “capacity”
    to be sued because they are property of their owners,
    concluding that “the MMPA and the operation of F.R.Civ.P.
    17(b) indicate that Kama the dolphin lacks standing to
    maintain this action as a matter of law,” and allowing “the
    removal of Kama’s name from the caption of [the] case”);
    Hawaiian Crow (‘Alala) v. Lujan, 
    906 F. Supp. 549
    , 551–52
    (D. Haw. 1991) (finding that in Northern Spotted Owl, Palila,
    and Mount Graham Red Squirrel, no party had challenged the
    named standing of the animal itself and the case had other
    parties in the litigation and ultimately concluding that “the
    cited cases do not directly support plaintiffs’ position here”
    and concluding that “the plain language of Rule 17(c) and
    section 1540(g) [did] not authorize the ‘Alala to sue” because
    it was “clearly neither a ‘person’ as defined in section
    1532(13), nor an infant or incompetent person under Rule
    17(c)”); Northern Spotted Owl v. Lujan, 
    758 F. Supp. 621
                         NARUTO V. SLATER                        37
    (W.D. Wash. 1991) (failing to address standing for named
    first-party); Northern Spotted Owl v. Hodel, 716 F. Supp 479
    (W.D. Wash. 1988) (failing to address standing for named
    first-party).
    D. The Majority’s reliance on both Rule 17 and cases
    discussing “adequate protection” in the context of
    Rule 17 are simply inapplicable.
    There is a crucial distinction between the cases cited by
    the Majority for the proposition that the only requirement for
    next friend suits is to ensure the “[incompetent parties] are
    adequately protected,” Maj. Op. at 10 (quotation marks
    omitted and alterations in original), and the facts of this case
    and next-friend standing broadly. Each case cited is an
    example of an incompetent person bringing suit on his own
    behalf or such a person being sued by another party. I list the
    cases cited by the Majority to emphasize:
    •   Krain v. Smallwood, 
    880 F.2d 1119
    , 1121
    (9th Cir. 1989) (“Lawrence Krain appeals
    the dismissal with prejudice of eight
    lawsuits he filed, in pro se, in the district
    court.” (emphasis added)).
    •   United States v. 30.64 Acres of Land,
    
    795 F.2d 796
    , 797 (9th Cir. 1986) (“The
    United States filed a complaint against
    Starr . . . to establish just compensation
    for 30.64 acres of Starr’s land taken by the
    government . . . .” (emphasis added)).
    •   Harris v. Mangum, 
    863 F.3d 1133
    , 1136
    (9th Cir. 2017) (“Plaintiff-Appellant Jason
    38                   NARUTO V. SLATER
    Harris, an Arizona state prisoner, filed pro
    se a lawsuit in state court that was
    subsequently removed . . . .” (emphasis
    added)).
    •   Roberts v. Ohio Cas. Ins. Co., 
    256 F.2d 35
    , 37, 39 (5th Cir. 1958) (finding where
    “Ohio Casualty Insurance Company . . .
    filed suit to set aside a ruling . . . against
    the claimants—the children and their
    grandmother,” and children had not been
    represented by a guardian ad litem, the
    lower judgment granting relief to the
    plaintiff must be reversed and remanded
    for further proceedings (emphasis added)).
    •   Westcott v. U.S. Fid. Guar. Co., 
    158 F.2d 20
    , 21 (4th Cir. 1946) (“The United States
    Fidelity & Guaranty Company . . .
    brought a civil action . . . seeking a
    declaratory judgment to the effect that it
    was not liable on a public liability policy
    . . . . The defendants in the civil action . . .
    were the insured, . . . George Mann, a
    minor.” (emphasis added)).
    Quite simply, there is no Article III jurisdiction question in
    any of these cases. Of course, the court would ensure such
    incompetent persons were adequately represented. The
    parties sought either redress in court as plaintiffs (but were
    not competent, and thus needed to be protected), or were
    pulled into court as defendants (and, thus, the court was
    required to ensure they were protected).
    NARUTO V. SLATER                              39
    These circumstances do not exist here. Our question is
    whether a third-party (PETA) has next-friend standing—such
    that it can invoke the authority of this court—to stand in
    Naruto’s shoes and advance his claims. It is not a question of
    whether Naruto was properly protected or was brought into
    this litigation as a defendant. Unlike the cases cited, Naruto
    (1) did not file this case himself; and (2) is not a defendant.
    PETA and Dr. Engelhardt initiated this suit on Naruto’s
    behalf. As such, the cases cited by the Majority are simply
    inapplicable.
    IV.        Conclusion
    The question of PETA’s next-friend standing was
    squarely before our panel. It was briefed and argued. By both
    concluding that next-friend standing is nonjurisdictional and
    reaching the merits of the Copyright Act question, the
    Majority allows PETA (with no injury or relationship to the
    real party in interest) to sue on Naruto’s behalf, because it
    obtained legal counsel to allegedly represent Naruto. I cannot
    support this conclusion.11
    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 well-
    being 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
    40                        NARUTO V. SLATER
    “[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
    NARUTO V. SLATER                              41
    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).
    Unfortunately, PETA’s actions could be the new normal under
    today’s holding.
    

Document Info

Docket Number: 16-15469

Citation Numbers: 888 F.3d 418

Filed Date: 4/23/2018

Precedential Status: Precedential

Modified Date: 4/23/2018

Authorities (40)

mt-graham-red-squirrel-tamiasciurus-hudsonicus-grahamensis-an , 954 F.2d 1441 ( 1992 )

Lexmark Int'l, Inc. v. Static Control Components, Inc. , 134 S. Ct. 1377 ( 2014 )

Tileston v. Ullman , 63 S. Ct. 493 ( 1943 )

Kirk B. Lenhard v. Charles Wolff , 443 U.S. 1306 ( 1979 )

Whitmore Ex Rel. Simmons v. Arkansas , 110 S. Ct. 1717 ( 1990 )

Gonzalez v. Thaler , 132 S. Ct. 641 ( 2012 )

May Roberts v. Ohio Casualty Insurance Company , 256 F.2d 35 ( 1958 )

Westcott v. United States Fidelity & Guaranty Co. , 158 F.2d 20 ( 1946 )

lawrence-s-krain-md-v-donald-smallwood-lynn-waters-lupe-torres , 880 F.2d 1119 ( 1989 )

palila-loxioides-bailleui-formerly-psittirostra-bailleui-an-endangered , 852 F.2d 1106 ( 1988 )

Warth v. Seldin , 95 S. Ct. 2197 ( 1975 )

Town of Greece v. Galloway , 134 S. Ct. 1811 ( 2014 )

Northern Spotted Owl v. Lujan , 758 F. Supp. 621 ( 1991 )

Groseclose Ex Rel. Harries v. Dutton , 594 F. Supp. 949 ( 1984 )

The Cetacean Community v. George W. Bush, President of the ... , 386 F.3d 1169 ( 2004 )

United States v. Michael Johnson , 256 F.3d 895 ( 2001 )

Christopher Owens Cynthia Hutchins,plaintiffs-Appellants v. ... , 244 F.3d 708 ( 2001 )

Davis v. Michigan Department of the Treasury , 109 S. Ct. 1500 ( 1989 )

Fogerty v. Fantasy, Inc. , 114 S. Ct. 1023 ( 1994 )

Steel Co. v. Citizens for a Better Environment , 118 S. Ct. 1003 ( 1998 )

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