animal rights – Animal Law Developments

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.

February 28, 2025February 28, 2025 by Michelle Pardo

USDA Office of Inspector General’s Audit of Dog Breeders: Have Inspectors Been Barking Up the Wrong Tree?

By Michelle C. Pardo

On February 3, 2025, the United States Department of Agriculture’s (USDA) Office of Inspector General (OIG) released a report of an audit that OIG had performed of the Animal Care Program Oversight of Dog Breeder Inspections. Audit Report 33601-0001-22 (Audit Report).

OIG’s objective? To determine: (1) whether selected dog breeders corrected Animal Welfare Act (AWA) noncompliances previously identified in USDA inspections; and (2) whether the USDA carried out enforcement actions on dog breeders with substantiated AWA violations during the audit period. Audit Report at 3.

February 27, 2025February 27, 2025 by John M. Simpson

U.S. Supreme Court Limits “Prevailing Party” Status for Attorney’s Fee Recovery by Plaintiffs

The U.S. Supreme Court’s recent opinion in Lackey v. Stinnie, No. 23-621 (U.S. Feb. 25, 2025), clarified for plaintiffs what it means to be a “prevailing party” for recovery of attorney’s fees. While the case arose under the attorney’s fee provision for civil rights cases – 42 U.S.C. § 1988(b) – the holding has broader implications for federal court litigation, particularly where the only relief sought by the plaintiff is injunctive relief.

The case was a civil rights challenge by Virginia automobile drivers pursuant to 42 U.S.C. § 1983, claiming that they were denied due process by a Virginia statute that required suspension of their drivers’ licenses without sufficient notice or hearing for failure to pay parking tickets and the like, with the suspension lasting until the fine was paid or a payment plan established. The district court granted a preliminary injunction, finding that plaintiffs were likely to prevail on their constitutional claim. Before the case could be tried, the state legislature repealed the statute at issue, and the parties, agreeing that the case was moot, stipulated to dismissal. Plaintiffs then sought recovery of their attorney’s fees under section 1988(b), which permits an attorney’s fee award to a “prevailing party,” inter alia, in a section 1983 case. Plaintiffs argued that, by obtaining a preliminary injunction that, in all likelihood, led to the repeal of the statute, they were “prevailing parties.” The Fourth Circuit, sitting en banc, agreed with plaintiffs, but the Supreme Court, in an opinion by Chief Justice Roberts, reversed.

Relying on a legal dictionary definition of “prevailing party” contemporaneous with the enactment of section 1988(b) – a party who successfully prosecutes the action – the Court reasoned that, because a preliminary injunction is based only on a likelihood of success on the merits, the plaintiff who obtains such relief has not “prevailed:”

Because preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer prevailing party status. A plaintiff who secures a preliminary injunction has achieved only temporary success at an intermediary “stage[ ] of the suit.” Black’s Law dictionary 1352. It cannot yet be said that he will “ultimately prevail[] when the matter is finally set at rest” or that he will have “successfully maintained” his claim “at the end.” Ibid. And external events that render a dispute moot do not convert a temporary order designed to preserve the status of the parties into a conclusive adjudication of their rights. [Slip op. at 7.]

According to the Court, its ruling “serves the interests of judicial economy. A straightforward, bright-line rule is easy to administer, reducing the risk of a ‘second major litigation’ over attorney’s fees.” [Slip op. at 10]. In this regard, the Court dismissed the plaintiffs’ concern that a defendant could “strategically moot” a case and avoid an award of attorneys’ fees if it feared ultimately losing the case. The Court noted that plaintiffs with damage claims would not face that threat and, even in cases seeking only injunctive relief, the case does not become moot if the challenged conduct is capable of repetition yet evading review. [Slip op. at 10]. At bottom, it is up to Congress to decide whether attorney’s fees should be awarded to plaintiffs who achieve some success but do not prevail – as is the case with Freedom of Information Act claims where plaintiffs can seek legal fees if they “substantially prevail[].” Id. at 11 (citing 5 U.S.C. § 552(a)(4)).

The Court did, however, limit its ruling to prevailing plaintiffs:

Our decision today should not be read to affect our previous holding that a defendant need not obtain a favorable judgment on the merits to prevail, nor to address the question we left open whether a defendant must obtain a preclusive judgment in order to prevail. See CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 431-434 (2016). As we have explained, “[p]laintiffs and defendants come to court with different objectives.” Id., at 431. [Slip op. at 9 n.*].

The decision in Lackey is likely to have implications beyond section 1988(b). Several federal statutes award legal fees to “prevailing parties.” In some regulatory cases, the preliminary injunction is in fact the main event of the case. For example, animal rights activists often file lawsuits under the National Environmental Policy Act or the Endangered Species Act, seeking to enjoin individual transactions or other activities by businesses who use animals for various purposes. The granting of a preliminary injunction, even though it is not a final determination of the merits of the case, could spell the end of the defendant’s project, either because the opportunity for the transaction has come and gone or the defendant does not have the resources to further litigate the case. Yet, in such circumstances, the plaintiff would not be entitled to seek attorney’s fees under the rationale of the Lackey case.

Whether Lackey has the result of cutting down on litigation by plaintiffs in in the regulatory sphere remains to be seen. However, that is what the dissenting opinion by Justice Jackson predicts. She points to research on the effect of the Court’s rejection of the “catalyst theory” in Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health & Hum. Resources, 532 U.S. 598 (2001), i.e., the theory that a plaintiff “prevails” if its suit was the catalyst for the defendant’s change in conduct. According to the dissent, Buckhannon “had the predictable practical effect of discouraging public interest organizations and private attorneys from taking on civil rights actions.” [Dissenting op. at 18].

February 4, 2025February 4, 2025 by John M. Simpson

PETA’s Animal Shelter Still Shows Grim Euthanasia Results

Animal rights group People for the Ethical Treatment of Animals (PETA) runs a facility that it calls an animal “shelter” in Norfolk, Virginia. All animal shelters in the Commonwealth of Virginia must report annually the number of animals the shelter takes in and what happened to them. These reports are filed with the Virginia Department of Agriculture and Consumer Services (VADCS) and are publicly available through that agency’s website.

PETA’s reports for 2024 show a high percentage of euthanized animals. PETA has maintained over the years that this death rate is because PETA accepts all types of animals, regardless of how poor the physical condition or likelihood of survival the animal’s situation may be. However, the public shelter in Norfolk — the Norfolk City Animal Control and Public Animal Shelter (NACC) — which also has an open admission policy, has a much lower euthanization rate. PETA has tried to claim that it serves a broader area, but NACC and PETA are only about 6 miles apart, so the differing euthanasia rates are not likely attributable to proximity. Furthermore, the overall euthanasia rate in the Commonwealth of Virginia for dogs and cats also is significantly lower than PETA’s. These trends are shown below in the graph that is based on 2024 filings with VDACS:

PETA’s euthanasia rates for dogs and cats have been consistently high over the last ten years, as the chart below (also based on VDACS collected data) illustrates:

The overall totals for this ten-year period are shown below:

PETA winces at the claim that it kills animals, but it does exactly that and in outsized numbers. If every single one of the dogs and cats that PETA puts down is beyond saving, then PETA ought to be able to say that in their intake policy, which they also must file with VDACS. But they don’t say that. The resulting silence is deafening, particularly when coupled with PETA’s well known, negative views on “pet” ownership:

Consider it from the perspective of animals who are kept as companions: Humans control every aspect of their lives-when and what they eat, whom they interact with, what they have to entertain themselves, even when and where they are allowed to relieve themselves. Dogs long to run, sniff, play with other dogs, and mark their territory. Cats yearn to scratch, climb, perch, and play. But they can’t satisfy these natural desires unless the people they depend on give them the opportunity to do so – and they often don’t.

PETA had $69,874,898 in revenue and $28,958,530 in net assets in 2023 according to its Form 990 filed with the IRS. Maybe PETA could take some of that money and do a better job of adopting out some of the dogs and cats that come into their possession.

January 22, 2025January 24, 2025 by John M. Simpson

Colorado Supreme Court Concludes (Unsurprisingly) That Elephants Aren’t Persons

On January 21, 2025, the Supreme Court of Colorado affirmed a lower court ruling that elephants maintained in a zoo were not properly the subject of a habeas corpus petition pursued by the animal rights group, Nonhuman Rights Project (NRP). Nonhuman Rights Project, Inc. v. Cheyenne Mountain Zoological Society, No. 24SA21 (Colo. Jan. 21, 2025). As the court observed, “We are not alone in rejecting NRP’s attempt to extend the great writ to nonhuman animals. . . . Every one of [NRP’s] petitions for writ of habeas corpus has been denied for the same or very similar reasons.” Slip op. at 16.

NRP filed the writ arguing that five elderly African elephants (Loxodonta africana) located at the Cheyenne Mountain Zoo (Missy, Kimba, Lucky, LouLou and Jambo) were “unlawfully confined” and should be relocated to an elephant sanctuary. Petitioner argued that elephants held in a zoo are prone to suffer from “chronic frustration, boredom, and stress, resulting over time in physical disabilities, psychological disorders, and, often, brain damage.” Slip. op. at 6. The zoo “vigorously disputed the factual allegations in the Petition, pushing back against the suggestion that the elephants were receiving anything short of remarkable care.” Id.

The Supreme Court concluded that habeas relief was unavailable here because the Colorado habeas statute only applies to “persons,” and “persons” means human beings:

Colorado’s habeas corpus statute does not define the term “person.” It is, however, defined by section 2-4-401, C.R.S. (2024), which contains definitions that “apply to every statute, unless the context otherwise requires.” Under section 2-4-401(8), “‘Person’ means any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity.” Looking to the dictionary, the term “person” is defined as an individual human being. See Person, Black’s Law Dictionary (12th ed. 2024) (“[a] human being”); Person, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/person [https://perma.cc/6AX5-9MCH] (“human, individual”).

Given the statutory definition of the term “person” and the plain and ordinary meaning of the term found in the dictionary, we conclude that the General Assembly’s choice of the word “person” demonstrates its intent to limit the reach of section 13-45-102 to human beings. Our conclusion is further bolstered by the fact that including nonhuman animals in the definition of the term “person” is the type of monumental change in the law that one would reasonably expect the General Assembly to make explicit. That is, “[i]f [the General
Assembly] intended to take the extraordinary step of authorizing animals as well as people . . . to sue, they could, and should, have said so plainly.” [Slip op. at 14-15 (citation omitted).]

The court likewise was not persuaded that the common law writ of habeas corpus was available: “[N]othing in the common law supports NRP’s position, which rests primarily on a concurring opinion and two dissenting opinions in its unsuccessful efforts to extend the writ of habeas corpus to nonhuman animals.” Slip op. at 16. This was the case notwithstanding NRP’s argument that elephants are “autonomous:” “Habeas protections flow from the status of being a person, not from a being’s ability to pass some type of autonomous capacity test.” Id. at 18.

It also was significant that NRP was not seeking to actually “liberate” the elephants but, instead, to move them to another form of confinement in a sanctuary: “The fact that NRP merely seeks the transfer of the elephants from one form of confinement to another is yet another reason that habeas relief is not appropriate here.” Slip op. at 19.

As the court summed it up:

Simply put, no Colorado court, nor any other court in any other jurisdiction in the United States has ever recognized the legal “personhood” of any nonhuman species. [Slip op. at 17.]

NRP has, for years, sought to push its animal rights agenda by burdening zoos and other exhibitors with habeas petitions seeking to move elephants to sanctuaries on the theory that holding such an animal in a zoological setting is deleterious to the animal’s welfare. (We have written about NRP’s actions several times, for example here.) Such assertions of poor welfare generally are baseless. For example, litigation involving the Ringling Bros. Circus elephants demonstrated that they generally lived longer than their wild counterparts. In fact, Ringling had one circus elephant who lived well into her mid-70’s. One would think that these habeas petitions would, at some point, be found by the courts to be frivolous.

August 9, 2024August 9, 2024 by John M. Simpson

D.C. Circuit Bounces Animal Rights Case on Standing Grounds

Animal rights groups often pursue consumer-type cases against food producers and argue that packaging claims and images supposedly mislead buyers into thinking that the animals turned into food were humanely raised. The goal really isn’t transparency. The goal is to use the cost of defending such claims to end the eating of animals as food. On August 9, 2024, the D.C. Circuit knocked out such a case on standing grounds. Animal Legal Defense Fund, Inc., v. Vilsack, No. 23-5009 (D.C. Cir. Aug. 9, 2024). Continue reading “D.C. Circuit Bounces Animal Rights Case on Standing Grounds”

June 13, 2024June 14, 2024 by John M. Simpson

Supreme Court Puts an End to “Resource Drain” Standing

To paraphrase the line from “Forrest Gump,” Supreme Court opinions are like “a box of chocolates; you never know what you are going to get.” For standing nerds, there was a gem in today’s opinion in FDA v. Alliance for Hippocratic Medicine, No. 23-25 (U.S. June 13, 2024). Continue reading “Supreme Court Puts an End to “Resource Drain” Standing”

February 7, 2024 by John M. Simpson

PETA’s Animal “Shelter” Continues as a Leader in Animal Death

Animal rights group People for the Ethical Treatment of Animals (PETA) recently posted the “news” that it had “newly obtained public records” showing that certain research universities had euthanized laboratory animals during the COVID-19 pandemic and that PETA had complained about this to the National Institutes of Health. In its zeal to attack the use of animals in medical research, PETA described this as a “mass killing spree.” What this ignores, however, as reported by The Chronicle of Higher Education back in 2020 when all this happened, is that universities made these difficult decisions because they had no choice. Social distancing requirements that forced animal care personnel to stay out of the labs, precluded the delivery of proper animal care. It was not humane to allow the animals to go without food, water and other husbandry. But what we thought was particularly interesting is PETA’s use of the rhetoric “mass killing spree” in light of what goes on in its own facility in Norfolk, Virginia. Continue reading “PETA’s Animal “Shelter” Continues as a Leader in Animal Death”

January 9, 2024 by John M. Simpson

Eighth Circuit Animal Rights “Ag Gag Law” Challenge Fail – Part II

Yesterday, we reported on a decision by the U.S. Court of Appeals for the Eighth Circuit that rejected a challenge by animal rights activists to a so-called “ag gag law” in Iowa. In a parallel decision the same day, the court issued another opinion rejecting a First Amendment challenge by animal rights groups to another aspect of the same law. Animal Legal Defense Fund v. Reynolds, No. 22-3464 (8th Cir. Jan. 8, 2024). Continue reading “Eighth Circuit Animal Rights “Ag Gag Law” Challenge Fail – Part II”