PETA actually appealed the decision discussed in the previous post.  The Ninth Circuit decided the appeal today.  I doubt any reader of this blog will be surprised to learn they affirmed.  Judge Carlos Bea wrote the opinion, joined in full by District Judge Eduardo Robreno, sitting by designation.  Judge Randy Smith concurred in part and in the judgment.

Here are some excerpts:

We gravely doubt that PETA can validly assert "next friend" status to represent claims made for the monkey both (1) because PETA has failed to allege any facts to establish the required significant relationship between a next friend and a real party in interest and (2) because an animal cannot be represented, under our laws, by a "next friend."

The majority also notes in a long footnote on the same page and the next that PETA really isn't much of a friend to Naruto, the monkey.  After oral argument went badly, PETA tried to abandon the appeal "in what appears to be an effort to prevent the publication of a decision adverse to PETA's institutional interests."  "Puzzlingly, while representing to the world that 'animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,' see PETA, https://peta.org (last visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting pawn in its ideological goals."

The representation problem is the main problem as I see it, see prior post, and as Judge Smith sees it, see below.  Even so, the majority decides it must reach the merits due to a Ninth Circuit precedent, Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004).  But under that precedent PETA wins the battle and loses the war:

Instead, the [Cetacean] court crafted a simple rule of statutory interpretation: if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing. The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute.  Therefore, based on this court's precedent in Cetacean, Naruto lacks statutory standing to sue under the Copyright Act.

And PETA has not only lost the case:

Counsel for Slater [the photographer] and Wildlife [Personalities, Ltd., the publisher] requests that the court grant him appellate-stage attorneys' fees and remand to the district court for the determination of the amount of those fees. Counsel for Slater and Wildlife is entitled to attorneys' fees and costs for this appeal. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994). Thus, the request in the answering brief by Slater and Wildlife for an award of attorneys' fees on appeal is granted.  The determination of an appropriate amount of fees on appeal is transferred to the district court pursuant to Ninth Circuit Rule 39-1.8.

In the Fogerty case [yes, that Fogerty], the Supreme Court held that the copyright law attorneys' fee provision is symmetrical.  People wrongly sued have as much right to recover their attorneys' fees from wrongful plaintiffs as wronged plaintiffs have to recover them from copyright violators.  (The civil rights attorneys' fee statute is written that way, too, but the Supreme Court read a bias into it.)  So PETA has to pay for its stupid stunt.

Judge Smith agrees on the merits of the Copyright Act, as noted above:

As the Majority opinion highlights in its treatment of the merits, PETA brought a frivolous lawsuit here. The argument that animals have statutory standing to maintain a Copyright Act claim--or any property right claims--is an easy question.  Under the holding in Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), the Copyright Act, and basic property law, animals have no such rights.

But the court never should have reached that question:

However, to reach its conclusion on the Copyright Act question, the Majority ignores its own conclusion regarding standing, instead determining that: (1) next-friend standing is nonjurisdictional; and (2) even if the elements of next-friend standing are not met, any third-party may still bring suit on behalf of anyone or anything--without the real party in interest's permission--as long as (A) the real party in interest has an Article III injury; and (B) the real party in interest is "adequately protected" by the purported next friend's (or self-appointed lawyer's) representation. Maj. Op. at 9-11. That determination fails to follow United States Supreme Court or Ninth Circuit precedent. Let me explain.

See the opinion for the explanation.

Will PETA let it drop here, or will they seek en banc review in the Ninth Circuit and then certiorari in the Supreme Court?  I'm ambivalent about it.  On one hand, I like to see frivolous litigation ended as quickly as possible.  On the other hand, review by a court with authority to overrule the Cetacean Community precedent is an intriguing possibility.