Naruto v. David John Slater

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/settlementreached-

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 subjectmatter

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 selfappointed

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 selfappointed

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 nextfriend

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-orcontroversy

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-orcontroversy

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 nextfriend

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 thirdparty

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 nextfriend

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 nextfriend

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, nextfriend

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 nextfriend

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 firstnamed

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 wellbeing

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.

Affirmed