The New Media Entertainment blog of August 18, 2014 http://blogs.duanemorris.com/newmedialaw/2014/08/18/are-copyrighted-works-only-by-and-for-humans-the-copyright-planet-of-the-apes-and-robots/ attracted a new blog reader, David Slater. He’s the photographer who had contested Wikimedia’s view that certain images of a monkey weren’t copyrightable because it believes that the monkey authored the images.
Mr. Slater wrote us to assert “…that these images were ALL taken on a tripod with a cable release, with the camera’s settings configured by myself, the tripod positioned such that the angle of lighting lit up the monkey nicely and the background was not distracting.” I appreciate learning Mr. Slater’s point of view.
Certainly, determining the answers to questions surrounding non-human copyrights will be very fact specific, to see if photographers, monkeys and other animals, and robots have a tripod to stand on. In this new copyright/animal realm, it would be unsurprising if particular allegations of facts are challenged and disputed in court, as well how to apply the Copyright Act.
This is good place to mention that the Copyright Office on August 18, 2014 issued the new draft of the third edition of its Compendium of U.S. Copyright Office Practices. Essentially, the Compendium is the inside baseball rulebook on how the Copyright Office implements the Copyright Act via its internal practices.
Of special note in the intersection of animals and copyright, is the statement in the Compendium that “A musical work created by solely by an animal would not be registrable, such as a bird song or whale song.” Further, the draft Compendium gives as an example of an uncopyrightable work: “A photograph taken by a monkey.”
As non-humans (especially via artificial intelligence) create commercially viable (to the humans) works, these questions will be increasingly important – more significant than animal copyrights. The laudable movement for animal rights may well stop short of granting them copyrights. Perhaps a pioneering Border Collie or Australian Labradoodle who becomes a best-selling author may inspire statutory changes, but for now that’s the state of the law.
The full list of works that the Copyright Office considers uncopyrightable works follows. Fascinating for a student of copyright like me. The text below consists of quotations from the draft Copyright Compendium:
306 The Human Authorship Requirement
The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
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(ies) state that the work was inspired by a divine spirit.
Examples:
• A photograph taken by a monkey.
• A mural painted by an elephant.
• A claim based on the appearance of actual animal skin.
• A claim based on driftwood that has been shaped and smoothed by the ocean.
• A claim based on cut marks, defects, and other qualities found in natural stone.
• An application for a song naming the Holy Spirit as the author of the work.
Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”
Examples:
• Reducing or enlarging the size of a preexisting work of authorship.
• Making changes to a preexisting work of authorship that are dictated by manufacturing or materials requirements.
• Converting a work from analog to digital format, such as transferring a motion picture from VHS to DVD.
• Declicking or reducing the noise in a pre-existing sound recording or converting a sound recording from monaural to stereo sound.
• Transposing a song from B major to C major.
• Medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment.
• A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern.
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.