Naruto v. David Slater

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.