Naruto's Right to Singularity

In 2018, the Ninth Circuit Court of Appeals ruled that Naruto, a crested macaque, did not have statutory standing to sue for copyright infringement regarding photographs he took (the "monkey selfies") because the Copyright Act does not explicitly grant such standing to animals. While nominally a "defeat" for Naruto, the case is remarkable for how much it conceded to him and animals generally, both in the logic of its decision and in secondary comments incidental to the decision. For starters, the court found Naruto to be the owner of his photos and to have suffered economic damage in not profiting from them,¹ and it reaffirmed (albeit begrudgingly) the precedent of Cetacean Community v. Bush, which stated that under Article III of the U.S. Constitution there is nothing explicitly barring animals from presenting a "case or controversy" and that this lack of explicit exclusion amounts to permission. At times, the court even appears anxious about its concessions, which indeed seem to seriously undermine any a priori legal distinction between animal and person. They have after all decided

Fig 1.

Two of Naruto's "monkey selfies," reproduced without permission from the copyright holder.

that Naruto is an artist in command of a machine (the camera) who can moreover sue in federal court and deserves to profit from his work; it's perhaps for fear of having let the cat out of the bag that the Ninth Circuit pleads repeatedly that legislation be introduced so as to explicitly bar animals from having constitutional standing to sue.²

All the more reason for them to be anxious, it seems to me, given that the deciding factor against Naruto can't but feel like a technicality, however forceful and widespread it will have proven to be. Indeed, nothing held back Naruto from winning his case except a bizarre incongruity that happens to be, in the American context, the legal reef upon which suits with animal plaintiffs have consistently wrecked. The incongruity corresponds to the two levels of standing doctrine, which holds that one must have both general (i.e., constitutional) standing and specific (i.e., statutory) standing. The word "doctrine" marks that it's here a matter of an interpretation of the U.S. Constitution that has solidified into consensus. Standing doctrine did so in the mid-twentieth century, seemingly animated by a general motivation to limit the power of the judicial branch, whose Article III power to regulate "cases and controversies" would, if faithfully interpreted, confer a sort of second-order power upon the courts relative to Congress and the presidency—if all controversies fall under the court's jurisdiction, so too do those that relate to the separation of powers.³ In other words, and even though American jurists would never admit it, standing doctrine is an "artificial correction" of the Constitution that yet stubbornly passes for an interpretation of the Constitution. For an initial impression of the hopelessness of any interpretation that purports to derive standing doctrine from the Constitution, note that the word "standing" does not occur in Article III of the U.S. Constitution, nor is there any trace of its concept, nor is there any distinction between general (constitutional) and specific (statutory standing) (see U.S. Constitution).

However "artificial" it may be, standing doctrine is serious business. Over and over, animal plaintiffs are granted constitutional but not statutory standing for reasons that are remarkably consistent in their logic and structure. A glance at Cetacean will show us the steps of the dance (this case, in which the world's dolphins, whales, and porpoises sued the Bush administration, will have invented this "standard"). On the one hand, it is therein acknowledged to be established precedent that, given that Article III of the U.S. Constitution gives standing to sue to any concerned party in a controversy and does not specify that said party be human, animals have standing to sue in U.S. court. In this first half of the incongruity, animals are not explicitly excluded, and so they are included...