Cite as 888 F.3d 418 (9th Cir. 2018)
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).
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 coneluding 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.[1]
- ↑ 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 well-being 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 “[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
