People for the Ethical Treatment of Animals didn't get a warm welcome from the Ninth Circuit in Naruto v. Slater, the “monkey selfie copyright case.”

The federal appellate court ruled Monday that monkeys don't have standing under the Copyright Act to bring such a case, even with PETA acting as “next friend.” The three judges on the case argued that “next friends” are intended to represent incompetent or incarcerated persons—not animals—and called on their Ninth Circuit colleagues to reconsider en banc the use of next friends.

Worse for PETA, majority author Judge Carlos Bea and concurring Judge N. Randy Smith pointed to the organization's behavior in the case as a prime policy reason for supporting their argument.

“PETA's real motivation in this case was to advance its own interests, not Naruto's,” Smith wrote, pointing out that the organization settled its own claims after oral argument, while stating that the macaque who took the selfie was not a party to the settlement. “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.”

➤➤ Want IP news that goes deeper? Geek out with Scott Graham's email briefing, Skilled in the Art. Sign up now.

PETA General Counsel Jeffrey Kerr said he was pleased that, aside from the “next friends” issue, the majority affirmed that the courthouse door remains open to animals, at least for now. He said criticism of the settlement was off-base, given that it provided for 25 percent of the proceeds from future sales of the monkey selfie photos to support Naruto's habitat. “It's the first time an animal will obtain a direct benefit” from a suit stemming its own creation, Kerr said.

The decision is a win for Berkeley solo Andrew Dhuey, who argued the appeal for photographer Slater, and for Cooley partner Angela Dunning, who argued for book publisher Blurb. PETA was represented by Irell & Manella partner David Schwarz.

Dhuey said he was pleased the Ninth Circuit agreed with both Slater's and Blurb's positions on next friend status and statutory standing.

The case has generated headlines around the world, and fueled questions about whether artificially intelligent computers could someday be considered “authors” of copyrighted works. But Naruto never gained much traction in court. U.S. District Judge William Orrick III of the Northern District of California ruled in 2016 that animals have no standing to assert copyright authorship under Ninth Circuit law.

Slater set out in 2011 to take photos of macaques in their natural habitat on the Indonesian island of Sulawesi in 2011. The parties dispute exactly how they were taken, but PETA alleged that after Slater set up his camera, a macaque named Naruto deliberately pressed the shutter multiple times when he became aware of his own reflection in the lens. PETA and Dr. Antje Engelhardt, a primatologist who said she'd monitored the macaques for years, brought suit as Naruto's next friends, saying the monkey should benefit from the copyright.

Orrick ruled last year that, under Ninth Circuit case law, animals do not have legal standing to bring lawsuits unless expressly provided for by statute. The Copyright Act makes no mention of animals, he wrote, and the U.S. Copyright Office has formally stated that “to qualify as a work of 'authorship,' a work must be created by a human being.”

Engelhardt dropped out of the case on appeal, and the Ninth Circuit judges sharply questioned at the July hearing whether PETA could establish next friend status on its own—and whether a monkey can legally hold a copyright.

PETA, Slater and Blurb announced they'd settled the case in September. In a joint statement, they said the case “raises important, cutting-edge issues about expanding legal rights for nonhuman animals” and that Slater would donate 25 percent of future gross revenues from the photographs to charitable organizations that protect the macaque habitat.

There was no mention of attorney fees, which are recoverable in copyright cases. Although Monday's Ninth Circuit opinion awarded fees on appeal, Dhuey said he does not expect to apply for them.

The Ninth Circuit refused to let the parties dismiss the case. Bea wrote that “we gravely doubt” that animals can be represented by next friends, but said he was bound by a previous Ninth Circuit decision that allowed it in limited circumstances not present in Naruto. Smith argued that decision was wrongly decided. U.S District Judge Eduardo Robreno, visiting from the Eastern District of Pennsylvania, concurred in Bea's opinion.

Like Smith, Bea criticized PETA's settlement of its own claims, but not Naruto's.

“PETA seems to employ Naruto as an unwitting pawn in its ideological goals,” Bea wrote. “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.”

While disagreeing about “next friends” status, the panel agreed unanimously that animals do not have standing to bring suits under the Copyright Act, even under the Ninth Circuit case law. That's because the Copyright Act limits authorship to humans, Bea concluded.

To support the position, Bea adopted an argument of Dhuey's, observing that the Copyright Act provides that following the death of an author, copyrights can pass to children, “whether legitimate or not,” or to spouses. “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,” Bea wrote.

Kerr said PETA is considering its options going forward but that he has no regrets about bringing the case. He argued that it's simply wrong to discriminate against Naruto “because he happens not to be human.”