Professor Richard Cupp, "Considering the Private Animal and Damages" - Washington University Law Review (Forthcoming 2021)

Professor Richard L. Cupp's article, "Considering the Private Animal and Damages," (SSRN) will be published in the Washington University Law Review (forthcoming 2021).  The article analyzes a potential trend toward seeking to name animals as plaintiffs in litigation seeking damages. The article looks to two recent high profile lawsuits to illuminate substantial policy issues: the Naruto v. Slater "monkie-selfie" copyright lawsuit, and Justice v. Vercher, an Oregon case seeking tort damages for criminal neglect of a horse. 

Abstract of "Considering the Private Animal and Damages"

Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have, in dramatic fashion, moved from academic debate to high-profile litigation. Focusing on two recent cases, this short article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle with into the foreseeable future. The most recent prominent case, Justice v. Vercher, is ongoing litigation seeking to designate a severely neglected horse as the plaintiff in a tort damages lawsuit against the horse's owner. The second case, Naruto v. Slater, unsuccessfully sought to designate a monkey as the plaintiff in a copyright infringement lawsuit. Both cases illuminate significant implications in seeking to designate animals as plaintiffs in private law damages lawsuits. Thankfully, societal concern over animal welfare is rapidly increasing, and more needs to be done to protect animals. But efforts like Vercher and Naruto represent a societally harmful approach to animal protection. Such cases will probably continue to fail in the short term, but analogous lawsuits are nevertheless likely to proliferate over time because the stakes are so high – success could be a back door to breaking down legal barriers between humans and animals. Further, as societal views regarding animals quickly evolve, the potential for misguided rulings creating dangerous animal legal personhood through such lawsuits is real.