Federal Judge Deals Blow To PETA’s Legal Monkey Business


Photo used with permission. Credit: ©Wildlife Personalities/David J Slater


















Wildlife photographer David Slater has braved some of the most inhospitable jungles around the world and has even been picked at by wild monkeys. However, nothing this British adventurer has done in the wild could have prepared him for the experience of being sued in the untamed American courts by an animal rights group, which is exactly what happened last year.

First, some background. In 2011, Mr. Slater was on the Indonesian island of Sulawesi photographing a species of monkeys called macaque. He was attracted to the animals because of what he describes as their “very human-like characteristics” and because they are very inquisitive and clever. Some of his pictures of them can be viewed on his website. Their inquisitiveness would ultimately attract the monkeys worldwide fame and, unfortunately, make Slater a target of a ridiculous lawsuit.

One day, while following a group of macaque, Slater put his camera on a tripod with a wide-angle lens and configured the settings such as predictive autofocus to give him a chance of a facial close up. As Mr. Slater explains, the monkeys seemed to love the shutter noise, and soon, they were grinning, grimacing and baring their teeth at themselves in the reflection of the large glassy lens.

Eventually, one of the monkeys pressed the shutter button while looking into the lens and captured a human-like smile that would charm everyone who saw it. The image went viral. In the weeks and months that followed, it did exactly what Slater had hoped it would do while he was trudging around the uncomfortable rainforest: raise awareness of the plight of this endangered species and provide him with some much-needed income. Slater holds a copyright on the photo that is valid in both the United States and the United Kingdom, and this is important for reasons mentioned below.

The photo eventually caught the attention of the group, the People for the Ethical Treatment of Animals, which went bananas and sued Slater. PETA claimed that the monkey in the photo, not Slater, owned the copyright to the image and should get any money generated by it.

However, Slater’s attorney, Andrew Dhuey, pointed out in his motion to dismiss the case that PETA’s “factual assertions regarding the creation of the famous Monkey Selfie Photograph” were erroneous. The image was captured only after Slater had worked meticulously to set it up.

While Slater’s work in making the photo possible is certainly important, frivolous lawsuits like this can sometimes be dismissed more quickly for other technical reasons. Therefore, his attorney argued that the monkey on whose behalf PETA was suing didn’t have legal standing. In short, he maintained that since Congress has not given non-human animals the right to sue for copyright infringement, the case should be tossed.

On January 6, federal judge William Orrick agreed and issued a proposed order granting the dismissal of the case. Case closed.

Well, maybe. NPR has reported that PETA is planning to keep fighting. And it has deep pockets.

While the hilarious image of the monkey in question has received worldwide attention, none of the reports on the judge’s action in this lawsuit have mentioned the fact that the photographer is British. This is relevant to the story because the lawsuit was filed in the United States, not Great Britain.

This kind of monkey business would never be tolerated in UK courts, or any other courts around the world for that matter. Unlike the United States, the UK has a “loser pays” legal system that would have required PETA to pay for Mr. Slater’s legal expenses if (when) it lost.

While anyone with common sense might look at this case and say PETA is foolish for filing it, the sad fact is that even PETA isn’t foolish enough to risk filing an outrageous lawsuit like this anywhere but the United States. And that should make every justice-loving American cringe.

Originally published on EpicTimes.com

“Loser Pays” Legislation Signed Into Law in Texas

Legislation aimed at cracking down on those who file frivolous lawsuits in Texas by requiring losing parties to pay the legal costs of those they sue — under certain circumstances — has been signed into law by Texas Governor Rick Perry.

It’s a long-overdue victory for those working to eliminate lawsuit abuse in Texas, and legal reform advocates there deserve to be congratulated for their hard work.  While it is not the groundbreaking Loser Pays system that some believed Texas would enact at the beginning of the year (see my earlier post), it is definite progress.

Texans for Lawsuit Reform says in a statement that this is “the most significant legislation impacting the Texas civil justice system” since reforms were approved in 2005 to eliminate abusive asbestos litigation.  Although TLR never refers to the legislation as Loser Pays in its statement, a quick Google search of “Texas Loser Pays” turns up headline after headline in newspapers around the country touting the reform as Loser Pays.  So is it Loser Pays or not?

If Loser Pays is defined as the type of civil justice system used in other countries around the world where someone pays the legal bills of the person or business they sue when they lose, then no, it’s not a true Loser Pays system.  However, it does take a major step toward making losers pay if their case is deemed by the courts not to have merit.

I suspect the legislation has received notoriety as a Loser Pays law because Texas, despite enacting many tort reforms in recent years, still lagged behind most states when it came to dismissing cases having no merit and penalizing those who file them.  Earlier this month, the Austin American Statesman pointed out in an article that “Texas is among eight states that do not allow motions to dismiss before evidence is presented in civil court.”  Because of that, I believe enactment of this legislation “feels” like a real Loser Pays law to those who have had to put up with lax treatment of those who file frivolous lawsuits for far too long.

Under the new law, the Texas Supreme Court must now adopt rules for early dismissal of lawsuits “that have no basis in law or fact.”  If a defendant prevails under these new rules in getting a case dismissed, the court “shall award costs and reasonable and necessary attorney’s fees.”

This is certainly a significant breakthrough, but it’s also something that many states have in some form or another.  The key to this working rests with how the Texas Supreme Court writes the rules for early dismissal and how judges around the state apply those rules.

It is important to note that this legislation received unanimous approval in the Texas Senate — winning support even from Senators who are allies of the plaintiffs’ bar.  Undoubtedly, the trial lawyers there know what trial lawyers elsewhere know: judges rarely use the laws to dismiss frivolous lawsuits or to require losing parties in those suits to pay the legal bills of those they’ve sued.

To paraphrase an old saying, the devil is in the implementation, so the real victory will come when judges in Texas and all other states begin enforcing the laws that are on the books.

A Texas-Sized, Bold Idea For Eliminating Frivolous Lawsuits

The competition between the 50 states for every new job out there just got very interesting.

The governor of Texas has “upped the ante” in the effort to attract job providers to his state by proposing an idea for ending frivolous lawsuits.  Some believe it could attract thousands of new jobs to the Lone Star state.

Governor Rick Perry’s plan is to create a “loser pays” system in the courts.  It’s used throughout the world, but plaintiff lawyers have worked hard to keep it out of Texas and every other state in the nation.  Under loser pays, plaintiffs who sue someone and lose have to pay the legal bills of their opponent.  It would discourage nuisance lawsuits and put an end to the lottery approach to litigation in which plaintiffs have very little to lose but much to gain by filing frivolous lawsuits.

As the Wall Street Journal pointed out in this editorial, Governor Perry’s plan isn’t a pure loser pays system, but it’s designed to target the lawsuits everyone wants to eliminate in the first place – frivolous lawsuits, or, what they define as “groundless.”

The current system costs way too much.  Meritless lawsuits can drive small companies out of business and have brought some families to the brink of bankruptcy – even when they “win” against the plaintiffs.  Lucrative out-of-court settlements are often won by plaintiffs’ lawyers simply because individuals and businesses do the math and realize that simply defending themselves in court will cost tens of thousands of dollars or much, much more to prove their innocence.

At the same time, Governor Perry has proposed changes that would make the courts more accessible to Texans with legitimate claims without the high costs associated with a drawn out trial. Lawsuits with claims between $10,000 and $100,000 would have expedited trial settings and limited discovery in order to get litigants in and out of the court quickly and allow swifter recovery for damages.

Americans, in general, know we live in the most lawsuit-happy nation on earth, but few of us know just how much more we’re being forced to pay for everything from medical care to consumer goods than folks in other countries because of all these lawsuits. According to researchers at the Pacific Research Institute, the average American could save a whopping $1,962 each year if the number of lawsuits in the U.S. were just the same as other industrialized countries (see page 76 of the pdf at this link). A loser pays system would eliminate the meritless lawsuits that drive up costs and drive away jobs.

Of course, the personal injury lawyers who’ve made a fortune off the current system will spend whatever they believe it takes to defeat this plan.  However, a few years ago, Texas Governor Rick Perry was able to enact bold reforms to reduce lawsuit abuse against medical professionals there, and it attracted waves of new doctors and improved health care.  Perhaps the time is ripe for an American version of loser pays.