The Case of the Monkey Photographer
Back in 2011, photographer David Slater found himself in a national park in North Sulawesi, Indonesia, taking pictures of critically endangered crested black macaque monkeys. After taking some pictures of the monkeys, Slater set his camera down, where one of the monkeys picked it up. The monkey then began taking hundreds of pictures. Although most of the pictures were out of focus, a few turned out to be quite impressive, like the selfie you see to your right. The Caters News Agency claimed copyright in the photos, but critics questioned how anyone could claim copyright in photos taken by monkeys.
As soon as a copyrightable work is fixed in a tangible medium i.e.(written down on paper, filmed, recorded, etc.), the copyright immediately becomes the property of its author. If an individual creates a work outside of any contractual or employment obligation, the individual is the author. If an individual creates a work as part of an employment obligation or as a “work for hire” the employer is the author. An author can assign the copyright in the work to a third party. In such a case, the third party would own the copyright, but the authorship would not change. But since a monkey cannot contract, a monkey cannot be either an employer or an assignor, and there are no laws or legal cases in the United States addressing whether a monkey can be an author of a copyrightable work.
A user posted several of the images taken by the monkeys to Wikimedia Commons, a media file repository for public domain and freely-licensed educational media content. Slater provided Wikimedia with a takedown request for the images, claiming the images were copyrighted. Wikimedia denied the takedown request, taking the position that Slater did not own the copyright in the images.
A Copyright Rules Revision
Last week there was no clear rule as to whether a work created by a non-human animal could be copyrighted. This week there is. Or at least there may be. On Tuesday, the Copyright Office released a draft of its first major revision of its practices in more than twenty years. Buried within the 1,200 pages of administrative practices is a statement that “The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy state that the work was inspired by a divine spirit.” This seems to settle the matter, at least for now.
While the new proposed administrative rules seem to settle the matter, there are still several outstanding considerations. First, the proposed rules may be revised before they are adopted. It the adopted rules do not include the prohibition on copyright registration for works produced by animals, we will be back to square one. Second, Congress could act to revise the Copyright Law to allow the registration of animal produced works, which would trump the Copyright Office’s administrative procedures. Third, a court could rule the administrative rules invalid on constitutional or other grounds. Fourth, while the new proposed rules appear to settle the issue in the United States, the issue is still unsettled in most other countries. If some countries decide to allow copyright in animal produced works, while others do not, we could end up with a menagerie of worldwide copyright laws.