The monkey selfie case is not quite over yet at the Ninth Circuit.
At least one member of the panel that decided the copyright case of Naruto the crested macaque last month is calling on the court to reconsider the decision en banc. Lawyers for People for the Ethical Treatment of Animals, photographer David Slater and publisher Blurb were invited Friday to file briefs within three weeks.
The court didn’t propose any specific reasons for going en banc, but it probably has little to do with copyright and a lot to do with Article III standing for animals.
Judge Carlos Bea wrote in April for the three-judge panel that “we gravely doubt that PETA can validly assert ‘next friend’ status” on behalf of the monkey.” But the panel felt compelled to allow it by a 2004 Ninth Circuit precedent that extended Article III standing to animals under certain statutes.
The Copyright Act was not one of those statutes, so PETA’s suit for Naruto failed on grounds of statutory standing.
Judge N. Randy Smith concurred separately, saying that animals can never have next-friend standing under Article III. “Federal courts do not have jurisdiction to hear this case at all,” he wrote.
Both he and Bea called on the court to review the 2004 case, Cetacean Community v. Bush, en banc. Friday’s order formalizes that position. A majority vote of the court’s 22 active judges is required for en banc review.
Naruto v. Slater has made headlines around the world. It began after a macaque used a camera that Slater had set up on an Indonesian island to photograph its own likeness. PETA and a primatologist brought suit as Naruto’s next friends, saying the monkey, not Slater, should be the true owner of the copyright.
U.S. District Judge William Orrick III ruled last year that, under Cetacean Community, animals do not have standing to bring lawsuits unless expressly provided for by statute. Following oral argument before the Ninth Circuit, Slater, Blurb and PETA struck a deal under which Slater agreed to donate 25 percent of future proceeds from the photos to support Naruto’s habitat.
The Ninth Circuit elected to decide the case despite the settlement.