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NARUTO v. SLATER
Cite as 888 F.3d 418 (9th Cir. 2018)

425

Therefore, we must determine whether Naruto has statutory standing^[1] to sue for 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.

Id. at 1179 (emphasis added).^[2] The court in Cetacean did not rely on the fact that the

↑ 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, – U.S. —, 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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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 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.
↑ 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

[1] 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, – U.S. —, 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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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 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.

[p425-2] 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

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