That is why Naruto needed a best friend - and, in fact, he was lucky enough to have two of them, the other being, perhaps inevitably, a distinguished German academic, Antje Engelhardt PhD.
The issue was whether the monkey, Naruto, owned the copyright of a selfie photograph which it had taken of itself in 2011. The camera had been made available to Naruto by Mr Slater but it was Naruto himself, an intelligent primate by all accounts, who made the decision to take the photograph and pressed the button.
The next friends claimed Naruto was entitled to the proceeds of the copyright, including royalties from a book published by Mr Slater which included the photograph.
Judge Orrick dismissed the claim on the basis of his interpretation of the US Copyright Act 1976, saying: "If Congress and the president intended to take the extraordinary step of giving animals standing, they would do so plainly", then going on to say that he did not think that the act could be read as going beyond humans. That is a direct way of dealing with the case but it avoids a much more interesting question. Had he won, what would Naruto have done with the proceeds?
The next friends had their answer as their pleadings proposed: "All proceeds from the sale, licensing, and other commercial uses of the Monkey Selfies, including Defendants' disgorged profits, be used solely for the benefit of Naruto, his family and his community, including the preservation of their habitat, in consultation with Dr Engelhardt and other third parties who are already working for such benefit and preservation."
The law of various US states permit funds to be bequeathed for the upkeep of animals and, indeed, there is English common law authority to the same effect. However, in those cases the money is simply left by the deceased for the purpose of maintaining the animal in a particular way and, on the animal's death, any balance passes to those entitled under the deceased's will. There is no question of the animal actually owning the money in a legal sense. If the next friends had succeeded, however, Naruto would have been entitled to the money in his own right and also to decide how any balance not used on his upkeep would be applied.
Those charged with making his decision for him would have had a difficult task. On the death of an incapacitated human who makes no will, money passes to family members. Does this apply to monkeys and, if so, how would one identify the family?
Perhaps one could argue that the funds should be disbursed as Naruto himself must have wanted, but there are obvious difficulties in establishing his desires as a question of fact. Would he have approved of his money being used on his community? Perhaps he would, but it is hard to be certain. His fellow monkeys may have been unkind to him and he may resent them. If so, perhaps he would prefer the money to go to a cats' home. After all, there are plenty of humans who take that approach. No, the test would have to be applied by reference to abstract criteria - what would a reasonable monkey have wanted? The monkey on the Clapham omnibus, as the lawyers say. No doubt the decision would be coloured by any evidence of Naruto's personal circumstances. Are there members of his tribe who have been especially kind to him? Did one share a banana with him at a time of adversity?
The other question is who would make the decision? Should it be his next friend or someone independent? Suppose the conclusion is that a reasonable monkey would want the money to go to an animal charity. Which one would it be? Would PETA be able to scoop up any surplus for its monkey project or would the competing claims of other animal charities, such as the RSPCA, have to be taken into account? Surely it could not depend on which organisation had acted as next friend, otherwise Naruto would end up like a sort of cash-stuffed football with charities fighting to represent him and grab the funds.
Ownership by the more intelligent animals may be an idea whose time will one day come but, as a preliminary step, a mechanism for animals to make decisions will need to be devised. For the moment, one can only be sorry that the US Courts have declined to rise to the challenge.
-John Watson is the editor of UK weekly online magazine The Shaw Sheet - www.shawsheet.com - where he writes as "Chin Chin".
