Slater Brief On Appeal As Filed
Slater Brief On Appeal As Filed
Slater Brief On Appeal As Filed
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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ............................................... i
TABLE OF AUTHORITIES ......................................................................... iv
INTRODUCTION .......................................................................................... 1
STATEMENT OF JURISDICTION .............................................................. 2
COUNTERSTATEMENT OF THE ISSUES ................................................ 3
STATEMENT OF THE RELEVANT FACT ................................................ 3
SUMMARY OF ARGUMENT ...................................................................... 4
ARGUMENT:
I.
II.
B.
B.
C.
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D.
1.
2.
3.
4.
5.
CONCLUSION ............................................................................................. 26
STATEMENT OF RELATED CASES ........................................................ 26
CERTIFICATE OF COMPLIANCE WITH WORD LIMIT ....................... 27
PROOF OF SERVICE .................................................................................. 28
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TABLE OF AUTHORITIES
Page
CASES
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................... 3
Beer v. United States, 361 Fed. Appx. 150 (Fed. Cir. 2010) ........................ 22
Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012) ................................ 22
Berry v. Hawaiian Express Serv.,
2006 U.S. Dist. LEXIS 78281 (D. Haw. 2006) ............................................ 18
Bridgeport Music, Inc. v. WB Music Corp.,
520 F.3d 588 (6th Cir. 2008) ........................................................................ 21
Brittain v. Superior Court of Napa County,
1993 U.S. Dist. LEXIS 8861 (N.D. Cal. 1993) ............................................ 25
Cetacean Community v. Bush,
386 F.3d 1169 (9th Cir. 2004) ........................................ 5-8, 13, 15-19, 21-22
Citizens to End Animal Suffering & Exploitation, Inc. v.
New England Aquarium, 836 F. Supp. 45 (D. Mass. 1993) ........................... 5
Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002) .............. 9, 11, 17
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,
118 F.3d 245 (5th Cir. 1997) ........................................................................ 24
Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. 2003) ................ 14, 23
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) .................................. 15, 17-20
Fox v. Vice, 563 U.S. 826 (2011) ................................................................. 25
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)........................................ 9-10
Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979 (2016) .............. 12, 14
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L.A. News Serv. v. Reuters TV Intl, Ltd., 149 F.3d 987 (9th Cir. 1998)...... 12
Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx. 705 (9th Cir. 2010) ..... 12
Maljack Prods. v. Goodtimes Home Video Corp.,
81 F.3d 881 (9th Cir. 1996) .................................................................... 12, 19
Massie ex rel. Kroll v. Woodford, 244 F.3d 1192 (9th Cir. 2001) ................. 9
Mattel, Inc. v. Walking Mt. Prods.,
2004 U.S. Dist. LEXIS 12469 (C.D. Cal. 2004) .......................................... 18
Minden Pictures, Inc. v. John Wiley & Sons, Inc.,
2014 U.S. Dist. LEXIS 60901 (N.D. Cal. 2014),
revd, 795 F.3d 997 (9th Cir. 2015) ................................................... 12-13, 15
Moody v. Smith (In re Moody), 105 B.R. 368 (Bankr. S.D. Tex. 1989) ...... 25
OToole v. Northrop Grumman Corp., 499 F.3d 1218 (10th Cir. 2007) ..... 24
Petri v. Kestrel Oil & Gas Props., L.P.,
2013 U.S. Dist. LEXIS 8695 (S.D. Tex. 2013) ............................................ 24
Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013) .......................... 13
Smith v. CMTA-IAM Pension Trust, 746 F.2d 587 (9th Cir. 1984).............. 12
T.W. by Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997) .................................. 10
Tilikum v. Sea World Parks & Entmt, Inc.,
842 F. Supp. 2d 1259 (S.D. Cal. 2012) .................................................. 17-20
Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980) ......................................... 12
PROVISIONS OF THE U.S. CONSTITUTION
Article III .......................................................................................... 10, 13, 22
Thirteenth Amendment ........................................................................... 17, 20
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STATUTES
United States Code,
Title 5, Section 702............................................................................... 6
Title 16, Section 1532(13). ................................................................... 6
Title 16, Section 1540(g)(1)(A)............................................................ 8
Title 17, Section 101............................................................................. 7
Title 17, Section 201............................................................................. 7
Title 17, Section 203 ............................................................................ 7
Title 17, Section 203(a)(2)(A). ............................................................. 7
Title 17, Section 304............................................................................. 7
Title 17, Section 505....................................................... 3, 11-14, 25-26
ACTS OF CONGRESS
Administrative Procedures Act .............................................................. 5-7, 16
Copyright Act......................................................................... 1, 6-8, 13, 20, 25
Endangered Species Act .............................................................................. 5-8
Marine Mammal Protection Act ............................................................ 5-7, 16
National Environmental Protection Act................................................. 5-7, 16
RULES
Federal Rule of Appellate Procedure 35(c) ................................................. 21
Federal Rule of Appellate Procedure 35(e) .................................................. 22
Federal Rule of Appellate Procedure 38....................................................... 17
Federal Rule of Civil Procedure 11 .............................................................. 25
Ninth Circuit Rule 39.1-1.6 .......................................................................... 11
OTHER AUTHORITIES
Andrew Dhuey, The Great Haste and Less Milling of Beer v. United States,
Patently-O (Aug. 12, 2010), http://patentlyo.com/patent/2010/08/guest-postthe-great-haste-and-less-milling-of-beer-v-united-states.html
(last visited Aug. 25, 2016)........................................................................... 22
Irell & Manella LLP, Irell Named to IP Hot List by National Law
Journal, June 2016, http://www.irell.com/news-item-470.html (last
visited Aug. 25, 2016)................................................................................... 19
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INTRODUCTION
This case winner of the U.S. Chamber of Commerce Most
Ridiculous Lawsuit of 2015 award1 is poised to retain its title in 2016. Last
year, an animal rights organization, People for the Ethical Treatment of
Animals, Inc. (PETA), and a primatologist, Antje Engelhardt, Ph.D.,
walked into federal court, claimed to be a monkeys next friends and sued
for infringement of the monkeys claimed copyright. To no ones surprise,
the district court dismissed the case for lack of statutory standing.
On appeal, the crazy got crazier. Dr. Engelhardt withdrew from the
case. That leaves PETA, which does not allege any relationship with the
monkey, as the monkeys sole next friend.
Under controlling Ninth Circuit precedent, monkey see, monkey sue
is not good law under any Act of Congress unless the legislative text plainly
grants non-human animals standing to sue. It is undisputed that Congress
never plainly said that non-human animals could have standing under the
Copyright Act. And even if Congress had taken that extraordinary step of
granting statutory standing to animals, separate Ninth Circuit precedent
STATEMENT OF JURISDICTION
Defendants-Appellees David John Slater and Wildlife Personalities,
Ltd. (henceforth, Slater) agree with Plaintiff-Appellants jurisdictional
statement.
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2.
Whether under 17 U.S.C. 505, this Court should award DefendantsAppellees their reasonable attorney fees on appeal against Next Friend
People for the Ethical Treatment of Animals, Inc.
http://www.djsphotography.co.uk/original_story.html
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for any professional photographer, and that was vital here for Slater as he
slowly built a trustful, friendly relationship with a group of crested macaque
monkeys. Only a talented human photographer could have made the artistic
choices involving camera lens width, positions and settings (e.g., predictive
autofocus, motorwind, and flashgun). PETA insults all professional
photographers with the suggestion that seeing your reflection in a lens and
pressing a shutter button by itself entitles one to a copyright for the
photograph, even when someone else made the critical artistic decisions that
resulted in a photographic work adored by millions worldwide.
SUMMARY OF ARGUMENT
The Court should affirm the dismissal for lack of standing because
Congress did not plainly say that non-human animals can have standing to
sue for copyright infringement. Additionally, the Court should affirm the
dismissal because PETA, the only remaining purported next friend of
Naruto, has alleged no relationship with him, as is required for next friend
eligibility.
Also, the Court should order PETA to pay Slaters appellate-stage
attorney fees, the amount thereof for the district to determine on remand.
PETAs positions are objectively unreasonable and its motivation in
prosecuting this action is improper. PETA should be deterred from bringing
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such a frivolous action again, and Slater should be compensated for enduring
this case.
ARGUMENT
I.
legally adopted by the author. See 17 U.S.C. 101, 201, 203 and 304. An
authors widow or widower owns the authors 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 authors interest.
203(a)(2)(A).
In sum, Cetacean Community set forth a straightforward test for nonhuman animal statutory standing, and the Copyright Act fails that test. If
only all standing analyses were so easy.
At the district court, PETA argued that Cetacean Community involved
a different statute than the Copyright Act, and as such is distinguishable.
According to PETA, there is a critical difference between the ESA, which
defines person to include an individual, and the Copyright Act, which
does not define author. PETA Br. 11-12. PETA thus ignores how the APA
does not define person, and how the MMPA and NEPA do not even have
explicit grants of statutory standing. The terms person, individual and
author could possibly include non-human animals. But the standing
inquiry under Cetacean Community is not about possibilities; it is rather a
simple question of whether the applicable Act of Congress plainly and
clearly directs that non-human animals have standing to sue. Id. at 1179.
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B.
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)) (emphasis added).
Two putative next friends filed this action: PETA and Dr. Engelhardt,
a primatologist who alleged that she has known, monitored, and studied
Naruto since his birth. ER 23. It may well be that the relationship with
Naruto Dr. Engelhardt alleged is significant under Coalition of Clergy v.
Bush. However, Dr. Engelhardt moved to withdraw from the case, informing
the Court that she will not continue as a next friend to Appellant in this
proceeding.3 This Court granted Dr. Engelhardts motion, thus leaving
PETA as Narutos lone putative next friend.4
Unlike Dr. Engelhardt, PETA did not allege any relationship with
Naruto, much less a significant one. That is a problem on appeal. PETA is
now in a position very much like the ballot initiative defenders in
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013): a party necessary for
standing at the district court is not participating in the appeal. [S]tanding
must be met by persons seeking appellate review, just as it must be met by
II.
the Court also award him his attorney fees on appeal under 17 U.S.C. 505.
Slaters attorney fees on appeal should be awarded against PETA, the party
responsible for this appeal.
A.
By stipulation, the parties have deferred the question of trial courtstage attorney fees until the resolution of this appeal. ER 8. It would thus be
judicially efficient to award Slater his fees on appeal, but remand for the
district court the determination of the amount of those fees. The district court
can then determine the amount at the same time that it considers Slaters
motion for fees incurred in district court proceedings.
The Court has discretion to defer the question of fees on appeal to the
post-decision procedure set forth in Ninth Circuit Rule 39.1-1.6, but Slater
respectfully submits that addressing his request in the merits opinion would
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B.
See, e.g., Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 714 (9th
Cir. 2010) (fees on appeal awarded to prevailing copyright case litigant
under 505; determination of amount for the district court on remand); L.A.
News Serv. v. Reuters TV Intl, Ltd., 149 F.3d 987, 997 (9th Cir. 1998)
(same); Maljack Prods. v. Goodtimes Home Video Corp., 81 F.3d 881, 89091 (9th Cir. 1996) (same); Smith v. CMTA-IAM Pension Trust, 746 F.2d
587, 588-91 (9th Cir. 1984) (same in ERISA case); Williams v. Alioto, 625
F.2d 845, 850 (9th Cir. 1980) (same in civil rights action).
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C.
1.
Should the Court affirm the district courts dismissal on the ground
that non-human animals lack statutory standing to sue for copyright
infringement, Slater will have achieved the greatest degree of success
possible in this litigation. Unlike cases where a lack of standing dismissal
left open the possibility that the defendant would face an infringement suit
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2.
See, e.g., Minden Pictures, Inc. v. John Wiley & Sons, Inc., 2014 U.S. Dist.
LEXIS 60901 at *20-21 (N.D. Cal. 2014) (degree of success for publisher
that won dismissal for lack of standing mitigated by fact that it remained
subject to suit by individual photographers), revd on other grounds, 795
F.3d 997 (9th Cir. 2015).
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the resulting next friend standing problem. PETA has not alleged a
significant relationship with Naruto as is required under Coalition of
Clergy v. Bush. In fact, PETA alleges no relationship with Naruto at all.
Given PETAs inability to make any reasonable arguments for why
two separate lines of controlling Ninth Circuit authority do not require
affirmance, PETAs appeal does not satisfy the requirement of Federal Rule
of Appellate Procedure 38 (frivolous appeal). PETAs positions fall well
below the more demanding standard of objective reasonableness under
Fogerty.
3.
1259, 1260 (S.D. Cal. 2012) (quoting complaint). PETA resisted SeaWorlds
motion to dismiss by citing, among other cases, Cetacean Community.7
The Tilikum court agreed with PETA that Cetacean Community was a
relevant precedent, but one that supported SeaWorlds arguments for
dismissal:
The court notes that while [a]nimals have many legal rights,
protected under both federal and state laws which provide for
the humane treatment and criminalizing cruelty to animals, only
human beings have standing to bring such actions. . . . It is
obvious that an animal cannot function as a plaintiff in the same
manner as a juridically competent human being.
842 F. Supp. 2d at 1262, n. 1 (quoting Cetacean Community, 386 F.3d at
1175-76).
Courts in this circuit analyzing the motivation factor of Fogerty have
considered whether a losing party had access to counsel who could warn
them that they were asserting an objectively unreasonable position.8 Here,
ECF 3:11-cv-02476, Dkt. no. 14, p. 21 (S.D. Cal. filed Jan. 13, 2012).
See, e.g., Berry v. Hawaiian Express Serv., 2006 U.S. Dist. LEXIS 78281
at *28 (D. Haw. 2006) (This Court also finds that Plaintiffs pursuit of
claims against Guidance, in spite of notice that its copying constituted fair
use, is a strong indication that he had an improper motivation. Plaintiff had
access to counsel who could have easily determined that such claims were
without legal and factual basis.); Mattel, Inc. v. Walking Mt. Prods., 2004
U.S. Dist. LEXIS 12469 at *7 (C.D. Cal. 2004) (Plaintiffs conduct also
does not appear to be motivated by the protection of a valid interest. Plaintiff
had access to sophisticated counsel who could have determined that such a
suit was objectively unreasonable and frivolous.).
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the same PETA in-house counsel who appeared in Tilikum are also counsel
in this case.9 PETAs outside counsel in this action are indisputably
sophisticated in the field of intellectual property.10 PETAs counsel could
and should have determined that it was objectively unreasonable to assert
that Cetacean Community left open the possibility of non-human animal
standing under an Act of Congress that does not plainly say that non-human
animals have standing.
After the district court hearing where Judge Orrick indicated his
intention to dismiss this action for lack of standing, PETA explained how,
from its perspective, it wins even while it loses.11 Despite this setback, we
are celebrating that legal history was made in our unprecedented argument to
a federal court that Naruto, a crested macaque monkey, should be the owner
See Irell & Manella LLP, Irell Named to IP Hot List by National Law
Journal, June 2016, http://www.irell.com/news-item-470.html (last visited
Aug. 25, 2016).
11
With regard to the Fogerty motivation factor, the Court may consider
statements of PETAs general counsel made outside of the evidentiary
record where the authenticity of the statements is not in doubt. See Maljack
Prods. v. Goodtimes Home Video Corp., 81 F.3d 881, 889, n. 12 (9th Cir.
1996) (The district court did not err in considering [unauthenticated internal
corporate] documents as indicators of MPIs motivation, however; MPI
produced the documents to GoodTimes, many of the documents were on
MPI letterhead and MPI does not contest their authenticity.).
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4.
12
Wall Street Journal Law Blog, Leading Questions: A Chat with PETA
Lawyer Jeff Kerr, June 6, 2016,
http://blogs.wsj.com/law/2016/06/06/leading-questions-a-chat-with-petalawyer-jeff-kerr/ (last visited Aug. 25, 2016).
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response to PETAs petition unless the Court had requested one. Fed. R.
App. P. 35(e).
A group of then-current and retired Article III judges modeled the
responsible way to challenge controlling precedent when they sued for
recovery of back pay. Beer v. United States, 361 Fed. Appx. 150 (Fed. Cir.
2010).14 At the Court of Federal Claims, the judges conceded that binding
Federal Circuit precedent required dismissal of their action. Id. at 151. At the
Federal Circuit, the judges filed a petition for initial hearing en banc, directly
challenging the binding precedent. Id. Should that petition be denied, the
judges acknowledged, affirmance of the dismissal would be required. Id. at
151-52. After an appellate journey that included a trip to the Supreme Court,
the judges prevailed. 696 F.3d 1174 (Fed. Cir. 2012). Throughout the
litigation, the judges were careful never to waste judicial or governmental
resources by pressing a legal position that was clearly untenable under the
controlling precedent they were challenging.
Giving PETAs appeal a most generous interpretation, it is at best an
attempt to overturn or at least limit the reach of the categorical holding in
Cetacean Community. Fair enough that is something for the Court to
14
See Andrew Dhuey, The Great Haste and Less Milling of Beer v. United
States, Patently-O (Aug. 12, 2010),
http://patentlyo.com/patent/2010/08/guest-post-the-great-haste-and-lessmilling-of-beer-v-united-states.html
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consider upon the filing of an en banc petition. But even with this generous
interpretation, it was and is unfair for PETA to force the district court, a
three-judge panel of this Court and the defendants to address legal positions
that are unreasonable under controlling Ninth Circuit authority. Awarding
Slater his fees on appeal would fairly compensate him for the enduring what
PETA unnecessarily forced him to endure. It would also deter PETA and
similarly-situated parties from engaging in irresponsible litigation conduct in
other cases.
5.
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D.
15
PETA,
Financial
Reports,
2015
Financial
Statement,
http://www.peta.org/about-peta/learn-about-peta/financial-report/
(last
visited Aug. 25, 2016); see OToole v. Northrop Grumman Corp., 499 F.3d
1218, 1224-25 (10th Cir. 2007) (abuse of discretion for district court not to
take judicial notice of financial data on defendants website, the accuracy of
which defendant did not dispute).
16
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 256 (5th
Cir. 1997); Petri v. Kestrel Oil & Gas Props., L.P., 2013 U.S. Dist. LEXIS
8695 at *18-22 (S.D. Tex. 2013) (Here Petri has not cited any authority for
not following the law regarding taxing costs against the losing party because
it was a next friend nor precedent within this Circuit for equitable
exceptions.).
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threatened attorney fees sanctions against next friends under Federal Rule
of Civil Procedure 11.17
Slater is unaware of any case where a court considered whether to
award attorney fees against a next friend pursuant to a fee-shifting statute.
Perhaps this is because the typical case in which a next friend appears is
on behalf of a relative who is the named plaintiff in a civil rights action. The
fee-shifting statute in federal civil rights cases allows a defendant to
recover reasonable attorneys fees incurred because of, but only because of,
a frivolous claim. Fox v. Vice, 563 U.S. 826, 836 (2011). Given that other
rules provide attorney fee sanctions against litigants who prosecute frivolous
claims, there will seldom be reason for federal courts to consider awarding
fees under a fee-shifting statute against a next friend litigant.
Still, this is the exceptional case (in so many ways). It would greatly
frustrate the purposes of the Copyright Act if putative next friends could
shield themselves from liability under Section 505 simply because they are
not the named plaintiff. There could be cases such as this one where all of
the applicable factors favor awarding fees to the prevailing party. What cold
17
Moody v. Smith (In re Moody), 105 B.R. 368, 372 (Bankr. S.D. Tex. 1989)
(The violations by Ms. Youngs discussed above are not overcome by her
argument that she is the next friend of the Debtor.); Brittain v. Superior
Court of Napa County, 1993 U.S. Dist. LEXIS 8861 at *18-19 (N.D. Cal.
1993).
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CONCLUSION
The Court should affirm the judgment of dismissal for lack of
statutory standing. The Court should also award Slater his attorney fees on
appeal against PETA, the amount thereof to be determined by the district
court on remand.
Respectfully submitted,
/s/ ANDREW J. DHUEY
Attorney for Defendants-Appellees,
DAVID JOHN SLATER and
WILDLIFE PERSONALITIES, LTD.
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5,541
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Microsoft Word 2010
14-point Times New Roman
25 August 2016
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16-15469
25 August 2016
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