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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    TechDescartes (profile), 14 Sep 2017 @ 10:18am

    Fair summary?

    Everyone told them the lawsuit was dumb and told them to give it up. They refused.

    Now, they want realize that the suit was dumb and want to vacate the bad ruling and get out. We refused.

    reply to this | link to this | view in chronology ]

    • icon
      hij (profile), 14 Sep 2017 @ 11:51am

      Re: Fair summary?

      It was and still is dumb. Both sides realized they got caught in a Chinese finger trap, and it took them this long to realize that to get out they just need to stop pulling. The problem is that they want to lay the finger trip down, and it needs to continue so that nobody else can pick it up.

      reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 14 Sep 2017 @ 11:02am

    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...)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2017 @ 11:30am

      Re:

      Exactly! The devoted that love being a part of idiotacy will go to extremes to push their cause, look at Al Gore and AGW.

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 14 Sep 2017 @ 11:39am

        Re: Re:

        Yes dear. (Please excuse me if I respond in the tone of voice of a condescending aunt to a retarded four-year-old. I have no idea what's up with that.)

        reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 14 Sep 2017 @ 12:13pm

        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.

        reply to this | link to this | view in chronology ]

        • icon
          Roger Strong (profile), 14 Sep 2017 @ 12:23pm

          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.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Sep 2017 @ 12:22pm

        Re: Re:

        Did you mean idiocracy?

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 11:19am

    Ethical? Keep throwing crap against the wall PETA, sooner or later something is bound to stick.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 11:26am

    Is the money competent to grant assent or did the monkey sign a durable power of attorney?

    We need to do a DNA analysis since man evolved from apes/monkeys. For all I know, I might be the monkey's uncle and have first right of kin thus getting rid of PETA in this dispute.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 14 Sep 2017 @ 1:12pm

      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.

      reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 14 Sep 2017 @ 6:54pm

      Re:

      The wonderful typo makes it sound like civil asset for forfeiture for a moment.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 14 Sep 2017 @ 11:45am

    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.

    reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 14 Sep 2017 @ 11:51am

    so uhh... why wasn't this filed in Indonesian court, where the primate in question resides?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 12:04pm

    It is Written...

    Over infinite time

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 14 Sep 2017 @ 12:15pm

    cofnused

    I'm confused how this is even a court case. The photo is in public domain. Anybody can still use it. Nothing is actually settled other than legally, nobody owns the photo.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2017 @ 12:59pm

      Re: cofnused

      Next step: Bar PETA from filing any and all future lawsuits directly or indirectly; Ban them from the courts of America.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 14 Sep 2017 @ 2:52pm

      Baseless threats and PR stunts

      Because Slater changed his story and insisted that no, it wasn't, catching the attention of PETA who jumped in to 'protect' the monkey from having it's valuable copyright stolen by the nefarious Slater.

      reply to this | link to this | view in chronology ]

  • icon
    tom (profile), 14 Sep 2017 @ 1:05pm

    Does anyone know if the monkey in question, Naruto, is still alive?

    In any case, does PETA have a signed(hand printed?) contract and retainer(a banana?) showing that Naruto retained them as attorney of record for this legal proceeding?

    If not, can PETA be charged for false representation?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 1:25pm

    never

    never, Ever, EVAR give your camera to a monkey -- EVER!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 1:50pm

    Soooo... the monkey wrench in this settlement is the monkey.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 2:24pm

    Well I'll be a moneys lawyer.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 2:56pm

    This is the kind of crap taking up America's courts' time dragging this country down the crapper.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 6:31pm

    Mike mashing more monkey musings,
    About an apeoid afar,
    PETA preferring precedent prevention,
    Slater stating selfie settlement,
    Naruto's neverending narrative

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 9:17pm

    Anyone else takes someone's camera, shoots a selfie, hands the camera back.. guess who own the picture. the owner of the camera. That's who.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Sep 2017 @ 12:26am

      Re:

      No, I copyright goes to the person who creates, in your example the photographer, regardless of who owns the camera.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 10:12pm

    It's adequate that the monkey is called Naruto

    Because everything surrounding this monkey copyright case is stupid, endless and pointless.

    reply to this | link to this | view in chronology ]

  • identicon
    oliver, 15 Sep 2017 @ 3:35am

    Here's the thing, and I mean it: PETA is nothing but a bunch of terrorists!!!
    They need to be eradicated from the face of the earth. A wood chipper comes to mind.

    Find my IP!!!

    reply to this | link to this | view in chronology ]

  • icon
    MyNameHere (profile), 15 Sep 2017 @ 6:12am

    PETA or PITA? Seems the same.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 15 Sep 2017 @ 7:49am

    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.

    reply to this | link to this | view in chronology ]

  • icon
    John Mitchell (profile), 15 Sep 2017 @ 8:35am

    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?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Sep 2017 @ 12:35pm

    Serious monkey business

    🙈🙉🙊
    Clearly someone has experienced a critical communication error with their client.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.