March 2025 – Animal Law Developments

March 26, 2025March 26, 2025 by Michelle Pardo

Maine Lobster Dispute Reaches Boiling Point

by Jesse Stavis

On February 6, 2025, Judge John A. Woodcock, Jr. of the District of Maine issued an eighty-five-page opinion denying a motion to dismiss filed by the Monterey Bay Aquarium Foundation (“Monterey Bay”) in a case concerning allegedly defamatory comments about the environmental impact of Maine’s lobster industry. At issue in Bean Maine Lobster, Inc. v. Monterey Bay Aquarium Foundation were warnings to consumers to avoid Maine lobster due to the industry’s alleged impact on endangered right whales. Read Duane Morris previous blog about this case here.

As part of its conservation efforts, Monterey Bay publishes Seafood Watch, a sustainable seafood advisory list that advises consumers and commercial buyers of seafood on the environmental impact of fishing and trapping operations. Seafood Watch had long rated Maine lobster as a “yellow” product, which means that consumers can feel comfortable buying it but should be aware of certain concerns, but in 2020 it decided to change the rating to red. This relabeling was motivated by concerns about the lobster industry’s impact on right whales, a critically endangered species. Specifically, Seafood Watch pointed to the risk of right whales becoming entangled in the ropes affixed to lobster pots.

The decision to relabel lobster had a major impact on Maine’s billion-dollar lobster industry. Because many commercial buyers rely on Seafood Watch, the relabeling caused a sharp 40% decline in lobster prices.

Reeling from the pinch of the announcement, two industry groups and three lobster companies sued Monterey Bay, alleging that the report that led to the relabeling was defamatory. The plaintiffs argued that the state’s lobster industry had taken a number of measures to protect right whales, including using sinking lines for traps, increasing the number of traps on a given line, and using weak ropes that break away when a whale becomes entangled. They further pointed to the fact that there had not been a single documented case of entanglement in a Maine lobster line since 2004—most entanglements were caused by the thicker lines used by Maine crabbers and Canadian lobstermen. (Notably, during the course of the litigation, a right whale died after becoming entangled in Maine lobster lines; the significance of this development was a major point of contention.)

Defendant Monterey Bay moved to dismiss the complaint on several grounds. First, the defendant argued that the Maine federal court lacked jurisdiction because its only contact with Maine was maintaining a website that was accessible in that state. The court denied this challenge, noting that a Monterey Bay representative gave a lengthy interview about the report to a Maine-based magazine. In a broader sense, the court reasoned that leveling accusations against the lobster industry would inevitably have an impact on Maine because “Maine is synonymous with lobster.”

Having dispensed with the jurisdictional issue, the court turned to the question of whether plaintiffs had stated an adequate claim of defamation. Here, Monterey Bay made three arguments: (1) that its statements were about the lobster industry in general, and not about the individual plaintiffs; (2) that the statements were protected because they were merely opinions; and (3) that plaintiffs could not show either malice or negligence. The court rejected each of these arguments in turn.

First, the court noted that even though Seafood Watch’s report had not mentioned the individual plaintiffs, it had made claims about the entire industry that would necessarily apply to each plaintiff. Second, the court held that plaintiffs had plausibly alleged that the statements in the report were statements of fact, rather than opinion. Here, the court noted that the report included a number of categorical claims (e.g., “At this time, each fishery using this gear is putting this protected species at risk of extinction; “[M]anagement measures… have not been successful at reducing serious injury and mortality”). A reasonable reader, the court concluded, could take claims like this as objective statements of fact. Third, the court held that the plaintiffs had adequately alleged either malice or negligence. The court noted that while citing sources for a conclusion generally shields a publisher from allegations of defamation, there is an exception where the publisher “deliberately ignores evidence that calls into question his published statements.” Because the lobster industry had shared a wealth of data and counterarguments during the writing of the report, and because Seafood Watch had decided to discount this information, a reasonable jury could find that there was actual malice.

Judge Woodcock’s opinion did not mark the end of the dispute. On March 6, Monterey Bay filed an appeal. If the appeal is rejected, and assuming the parties do not settle the dispute, the case will proceed to discovery.

March 24, 2025March 27, 2025 by John M. Simpson

D.C. Circuit: Machine Using AI to Create Artwork Cannot Own a Copyright in the Artwork

On March 18, 2025, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court ruling that a work created with artificial intelligence (AI) using a machine cannot be registered in the name of the machine itself because the Copyright Act requires that a copyright owner be a human being. Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. Mar. 18, 2025).

The plaintiff had created a picture entitled “A Recent Entrance to Paradise” with a machine called the “Creativity Machine” that generated the artwork using AI. The plaintiff applied for copyright protection, listing the machine as the author and the plaintiff as the owner. Plaintiff argued (1) that, under the Copyright Act, an “author” need not be a human being but can be a machine; and (2) that plaintiff could be the owner of the work under the work-for-hire doctrine because non-humans such as corporations can be authors under this doctrine. As did the Copyright Office and the district court, the appellate court rejected both arguments.

As to the first point, the court noted that, while the Copyright Act does not define “author,” the statute’s use of that term is incompatible with a machine being an author. This is because, under the Copyright Act an “author”

must have the legal capacity to own property;
must have a lifespan since copyrights generally last for the author’s life plus 70 years;
must have surviving spouses or children under the statute’s inheritance provision;
must have a signature;
must have a nationality or domicile;
must have intentions since authors of joint works intend that the contributions be merged together.

[Slip op. at 11-12.] Machines can do none of these things. Furthermore, the Copyright Act at several places discusses machines and makes it clear that machines are tools not authors.

As to plaintiff’s work-made-for-hire argument, the court observed that that provision “allows the copyright and authorship protections attaching to a work originally created by a human author to transfer instantaneously, as a matter of law, to the person who hired the creator.” [Slip op. at 17.] The fact remains that the author of the work for hire must still be a human being.

While the plaintiff also argued that he should be considered the “author” of the work because he made and used the Creativity Machine, the court deemed this argument waived because it was not made to the Copyright Office. [Slip op. at 23.]

So, one might ask, what does this case have to do with animal law? Well, the Thaler case illustrates the arguments made by litigants seeking to get courts to convey to animals or other non-humans rights and privileges conventionally held only by human beings. One such argument in Thaler was the plaintiff’s point that the dictionary defined “author” as “one that originates or creates something” and therefore was not limited to human beings. However, as the court observed:

[S]tatutory construction requires more than just finding a sympathetic dictionary definition. We “do not read statutes in little bites,” or words in isolation from their statutory context. Kircher v. Putnam Funds Tr., 547 U.S. 633, 643 (2006). The judicial task when interpreting statutory language, instead, is to discern how Congress used a word in the law.
[Slip op. at 16.]

In fact, the D.C. Circuit made a specific connection to animal law by citing the decision in Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), in which the Ninth Circuit held that a monkey cannot be an “author” under the Copyright Act. And, like Thaler, animal rights groups have tried to base their arguments on dictionary definitions. See, e.g., Animal Leg. Def. Fund v. U.S. Dep’t of Agriculture, 933 F.3d 1088, 1094 (9th Cir. 2019) (the term “individual” in the Freedom of Information Act cannot reasonably be interpreted to include a Bengal tiger).

As AI continues to develop and grow more robust, stayed tuned for more novel arguments in this space.

March 10, 2025March 10, 2025 by John M. Simpson

PETA Claims First Amendment Right to Communicate with Monkeys

The Beach Boys wrote a song called “Pet Sounds.” In a recently filed federal lawsuit, animal rights organization People for the Ethical Treatment Animals (“PETA”) claims that it has a First Amendment right to receive monkey sounds (as well as monkey movements).

The lawsuit, filed on March 6, 2025 in the U.S. District Court for the District of Maryland, is entitled People for the Ethical Treatment of Animals v. National Institute of Mental Health, et al., No. 8:25-cv-00736-PX. The case centers on research done in an NIMH laboratory that utilizes the Rhesus Macaque. According to the Tulane University National Primate Research Center, Rhesus Macaques are placed within the Cercopithecidae family (Old World Monkeys), So, for simplicity, we’ll refer to them as monkeys.

The gravamen of the lawsuit is that the federal defendants turned down PETA’s request for a live-stream audiovisual feed of the monkeys in the laboratory. PETA claims that the monkeys are “willing speakers” who “regularly communicat[e]” about their physical and psychological condition. According to PETA’s complaint, experts in monkey communication claim the ability to understand the information that the animal sounds, body posture, facial expression and other actions purportedly convey. PETA claims that denying it the ability to communicate with “fellow primates” violates PETA’s First Amendment rights, and PETA therefore wants the court to permanently enjoin the defendants from “withholding from PETA … access to the rhesus macaques’ communications.”

PETA’s track record in opposing animal-based medical and mental health research is well-known. Thus, most of the complaint is devoted to describing the research that is performed, the conditions of the laboratory and in making PETA’s overall case for the abolition of animal-based research. However, the First Amendment predicate for the case is extremely thin, if not nonexistent. PETA cites a number of cases to the effect that there is a First Amendment right to receive information even though the speaker may not, itself, have a First Amendment right. But PETA cites no case (and we are aware of none) holding that the sounds and body gestures of a monkey constitute speech that is protected under the First Amendment – whether it concerns the speaker’s right to speak or the listener’s right to receive.

PETA’s complaint also pleads a denial of due process under the Fifth Amendment but is very vague on what “property” or “liberty” interest of PETA was allegedly violated.

This isn’t the first time that PETA and other animal rights groups have sought attention by trying to get a court to confer human rights on an animal, but very few of these efforts has succeeded. Thus, killer whales are not subject to the Thirteenth Amendment, elephants are not covered by the writ of habeas corpus, a Bengal tiger can’t pursue a Freedom of Information Act request, humans don’t have “next friend” standing to pursue a copyright claim on behalf of a monkey or a bill of attainder claim on behalf of a barn owl, and dogs, birds and dugongs don’t have standing in federal court to sue. PETA’s current effort to have a federal court declare monkey speech protected by the First Amendment would clearly seem to be headed for a similar fate. Indeed, the U.S. Court of Appeals for the Eleventh Circuit rejected an effort to invoke the First Amendment on behalf of “Blackie the Talking Cat,” an animal that allegedly “spoke, for a fee, on radio and on television shows such as ‘That’s Incredible.’” Miles v. City Council of Augusta, Ga., 710 F.2d 1542, 1543 (11th Cir. 1983) (per curiam). Affirming dismissal of the First Amendment claim, the court ruled that it “will not hear a claim that Blackie’s right to free speech has been infringed. . . . [A]lthough Blackie arguably possesses a very unusual ability, he cannot be considered a ‘person’ and is therefore not protected by the Bill of Rights.” Id. at 1544 n.5.