Lawyer: Without The Monkey's Approval, PETA Can't Settle Monkey Selfie Case

from the has-the-monkey-settled? dept

Ted Frank is a well-respected lawyer who has heroically dedicated much of his career to stopping bad legal practices, including sketchy settlements in class action lawsuits. Now he’s taking action in another case involving a sketchy settlement: the monkey selfie case. As we highlighted earlier this week, while it was no surprise that PETA and photographer David Slater worked out a settlement agreement to end the ridiculous lawsuit PETA had filed, it was deeply concerning that part of the settlement involved PETA demanding that the original district court ruling — the one saying, clearly, that animals don’t get copyrights — should be thrown out.

It took just a few days for Frank, on behalf of CEI, to file a wonderful and hilarious amicus brief with the court. There are a bunch of reasons why vacatur is improper here, but the real beauty of this brief is in pointing out that Naruto — the monkey — has been left out of the settlement, and thus not “all parties” have agreed. No, really.

PETA continued to assert that it acted as Naruto?s next friend before this Court, after Dr. Engelhardt voluntarily dismissed her appeal before briefs were filed…. The defendants argued that because Dr. Engelhardt was the only person pleaded to have any relationship with Naruto, PETA could not demonstrate the ?significant relationship? required to establish next friend standing…. In response, PETA again asserted in writing and at oral argument that it acts as Naruto?s next friend….

Incredibly, PETA now represents that it entered into settlement with the defendants alone?without Naruto…. The settlement instead ?resolves all disputes arising out of this litigation as between PETA and Defendants.?… This statement makes no sense. PETA did not have claims against the defendants. PETA argued repeatedly it was a next friend, a nominal party. For what their worth, all claims arising out of this litigation belong to the sole plaintiff, Naruto….

The underlying complaint does not plead a case or controversy between PETA and defendants, and this alone bars vacatur. Without standing, PETA may not move for vacatur. It does not matter that the defendants half-heartedly moved for vacatur under their settlement agreement ?without joining or taking any position as to the bases for that request.?… The losing party?Naruto?must carry the burden of proving ?equitable entitlement to the extraordinary remedy of vacatur.?…

No Naruto, no standing, no vacatur.

No Naruto, no standing, no vacatur. What a world we live in.

PETA?s too-clever-by-half argument simply does not work. PETA cannot claim to be a qualified next friend, then pretend to be unqualified when it suits them for the limited purpose of vacating an unfavorable precedent. Their position is especially untenable because PETA still ?contends that it can satisfy the Next Friend requirements, or should be permitted the opportunity to do so before the district court, if the appeal is not dismissed.?

Alternatively, Frank argues that since Naruto is not technically a part of the settlement, perhaps the appeals court should reject the settlement and issue its opinion anyway:

Alternatively, if the Court takes PETA?s argument literally, and if PETA agreed only to stop acting as next friend for Naruto, leaving the monkey without an advocate, such a selfish settlement would not extinguish Naruto?s appeal. A stipulation signed only on behalf of the next friend (a nominal party) cannot moot the underlying controversy with the actual party. To the extent that PETA insists this occurred, they have simply ceased to adequately represent their supposed friend Naruto. If so, PETA?s stipulation should be disregarded.

Frank also takes a stab at PETA’s whole “next friend” argument and why it’s so silly in a footnote. First, he notes that if the court is concerned that Naruto is now “friendless” at the court, it could appoint a guardian ad litem, with the following footnote mocking PETA’s claim to “next friend” status.

The Competitive Enterprise Institute has as much of a personal relationship with Naruto as PETA pleaded (i.e., none), so might plausibly serve the role as well as PETA has. However, any next friend or guardian should have a bona fide personal and non-ideological interest in the incompetent person?putting aside the question of whether animals may be persons under Fed. R. Civ. Proc. 17.

And, of course, who knows if Naruto (or some other “next friend”) won’t sue again:

In any event, if Naruto?s claims were indeed not settled by PETA, vacatur should be denied because ?Naruto? (that is, someone claiming to be his ?next friend?) would remain free to file suit again for further acts of alleged infringement.

While this is a bit of a throwaway line, it’s actually important — and it’s one that David Slater should pay attention to. Allowing PETA to toss out the lower court settlement might not end his legal troubles over this matter. Anyone else alleging to be Naruto’s “next friend” might go right back to court.

Finally, Frank notes that just because the parties have announced a settlement, that doesn’t mean the court can’t reject it and issue a ruling — providing guidance to other courts in the circuit on this issue.

In Americana Art, the panel chose to issue an affirming opinion notwithstanding the dismissal because of the ?opportunity to provide additional guidance to the district courts.?… PETA previously stated to this Court that the case presents ?a question of first impression [and] the issue is not a trivial one.? … Given the judicial resources already expended at the district-court and appellate level, the Court can rationally conclude, especially given that PETA is attempting to elide the question of whether it is or is not a ?next friend,? that, if the Court is already close to a decision in this straightforward case, it should provide ?guidance to the district courts? by issuing a decision that would not require much additional expenditure of judicial resources

I would be pleasantly surprised if the 9th Circuit actually keeps the case going and issues an opinion — but at the very least, it shouldn’t ditch the district court ruling.

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Companies: cei, peta

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Comments on “Lawyer: Without The Monkey's Approval, PETA Can't Settle Monkey Selfie Case”

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49 Comments
Roger Strong (profile) says:

While this is a bit of a throwaway line, it’s actually important — and it’s one that David Slater should pay attention to. Allowing PETA to toss out the lower court settlement might not end his legal troubles over this matter. Anyone else alleging to be Naruto’s "next friend" might go right back to court.

(Everyone looks at Charles Harder…)

Toom1275 (profile) says:

Re: Re: Re:

You mean like how after the corrupt Lamar Smith’s sham accusations against NOAA fell apart, a group of partisan hacks called Judicial Watch tried to grab the scientists’ emails in his stead, only to be rightly beaten down in court?
You’re quite right, only somebody incomprehensibly stupid would believe that the demand for emails was ever for a valid purpose.

Roger Strong (profile) says:

Re: Re: Re: Re:

Don’t forget “Climategate”, where a university email server was hacked and thousands of climate research emails and files were leaked.

Climate change deniers went “AHA!!!” only to find… nothing to support their conspiracy theories. Eight committees investigated the allegations and published reports, finding no evidence of fraud or scientific misconduct.

The deniers had to settle for claims of “deleting evidence” based on someone trying to fit a report onto one printed page.

David says:

Re: Alexandre Dumas Pere beats you:

In response to some racist twit he said:

My father was a mulatto, my grandfather was a Negro, and my great-grandfather a monkey. You see, Sir, my family starts where yours ends.

I think that this applies pretty well to this case where Naruto delivered photographic evidence that it is the one with the least amount of egg on its face considering everyone involved.

Anonymous Anonymous Coward (profile) says:

Correct Identification of the Plaintiff

I want to see someone show up in court with a Macaque monkey and try to prove that it is in fact Naruto. The cross examination would be hilarious:

Lawyer: Are you in fact a Macaque money?

Monkey: ooh ooh aah aah screech

Lawyer: Is that a yes?

Monkey: ooh ooh aah aah screech

Lawyer: OK, maybe we can take that as a yes. Are you in fact Naruto?

Monkey: ooh ooh aah aah screech

Lawyer: Is that also a yes?

Monkey: ooh ooh aah aah screech

Lawyer: OK, um, do you have any identification like a birth certificate?

Monkey: ooh ooh aah aah screech

Judge: Recess for lunch, lawyers in my chambers…now.

Bergman (profile) says:

Re: Re: Baseless threats and PR stunts

That should have scuttled the case right then and there.

Monkey steals camera and accidentally snaps photo, camera owner admits it freely. Right up until it’s pointed out that that means he doesn’t own the rights to the photo. Then suddenly it was all staged to trick the monkey into pressing the shutter button.

The question then becomes — was he lying then or is he lying now? Either way though, he’s outed himself as a liar.

Ninja (profile) says:

Gawd how I laughed with this one. The jokes in the article about the settlement got a whole lot funnier with this.

I hope PETA gets their collective arses handed back to them in a plate by the court. Slater has already paid the price of his copyright antics with his bankruptcy and honestly even with his past actions I think it was too much and make PETA look even worse in this case.

John Mitchell (profile) says:

Attorney-client relationship

If Naruto wants to waive his attorney-client privilege, how can he go about doing so?

Suppose Naruto wanted his work to be in the public domain, how will we ever know?

If Naruto would like to license his work for two bananas per day, how would his attorney know whether he would settle for one banana per day, plus a crotch scratch?

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