{"id":77,"date":"2014-12-15T20:43:16","date_gmt":"2014-12-16T00:43:16","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/newmedialaw\/?p=77"},"modified":"2016-04-13T12:31:09","modified_gmt":"2016-04-13T16:31:09","slug":"more-about-the-monkey-and-the-selfie","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/newmedialaw\/2014\/12\/15\/more-about-the-monkey-and-the-selfie\/","title":{"rendered":"More about the Monkey and the Selfie"},"content":{"rendered":"

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\/<\/span><\/a> attracted a new blog reader, David Slater. He\u2019s the photographer who had contested Wikimedia\u2019s view that certain images of a monkey weren\u2019t copyrightable because it believes that the monkey authored the images.<\/p>\n

Mr. Slater wrote us to assert \u201c\u2026that 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.\u201d \u00a0I appreciate learning Mr. Slater\u2019s point of view.<\/p>\n

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.<\/p>\n

This is good place to mention that the Copyright Office on\u00a0 <\/span>August 18, 2014 issued the new draft of the third edition of its Compendium of U.S. Copyright Office Practices.\u00a0 <\/span>Essentially, the Compendium is the inside baseball rulebook on how the Copyright Office implements the Copyright Act via its internal practices.<\/p>\n

Of special note in the intersection of animals and copyright, is the statement in the Compendium that \u201cA musical work created by solely by an animal would not be registrable, such as a bird song or whale song.\u201d Further, the draft Compendium gives as an example of an uncopyrightable work: \u00a0\u201cA photograph taken by a monkey.\u201d<\/p>\n

As non-humans (especially via artificial intelligence) create commercially viable (to the humans) works, these questions will be increasingly important \u2013 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\u2019s the state of the law.<\/p>\n

The full list of works that the Copyright Office considers \u00a0uncopyrightable works follows. Fascinating for a student of copyright like me. The text below\u00a0consists of\u00a0quotations from the\u00a0draft Copyright Compendium:<\/p>\n

306 The Human Authorship Requirement<\/p>\n

The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.\u00a0The copyright law only protects \u201cthe fruits of intellectual labor\u201d that \u201care founded in the\u00a0creative powers of the mind.\u201d Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because\u00a0copyright law is limited to \u201coriginal intellectual conceptions of the author,\u201d the Office\u00a0will refuse to register a claim if it determines that a human being did not create the\u00a0work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).<\/p>\n

The Office will not register works produced by nature, animals, or plants. Likewise, the\u00a0Office cannot register a work purportedly created by divine or supernatural beings,\u00a0although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.<\/p>\n

Examples:<\/p>\n

\u2022 A photograph taken by a monkey.<\/p>\n

\u2022 A mural painted by an elephant.<\/p>\n

\u2022 A claim based on the appearance of actual animal skin.<\/p>\n

\u2022 A claim based on driftwood that has been shaped and smoothed by\u00a0the ocean.<\/p>\n

\u2022 A claim based on cut marks, defects, and other qualities found in\u00a0natural stone.<\/p>\n

\u2022 An application for a song naming the Holy Spirit as the author of the work.<\/p>\n

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\u00a0intervention from a human author.\u201d<\/p>\n

Examples:<\/p>\n

\u2022 Reducing or enlarging the size of a preexisting work of authorship.<\/p>\n

\u2022 Making changes to a preexisting work of authorship that are\u00a0dictated by manufacturing or materials requirements.<\/p>\n

\u2022 Converting a work from analog to digital format, such as\u00a0transferring a motion picture from VHS to DVD.<\/p>\n

\u2022 Declicking or reducing the noise in a pre-existing sound recording or\u00a0converting a sound recording from monaural to stereo sound.<\/p>\n

\u2022 Transposing a song from B major to C major.<\/p>\n

\u2022 Medical imaging produced by x-rays, ultrasounds, magnetic\u00a0resonance imaging, or other diagnostic equipment.<\/p>\n

\u2022 A claim based on a mechanical weaving process that randomly\u00a0produces irregular shapes in the fabric without any discernible\u00a0pattern.<\/p>\n

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<\/u><\/a> in the firm’s <\/em>Alumni Spotlight publication and his obituary<\/u><\/a> in the <\/em>Boston Globe.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s the photographer who had contested Wikimedia\u2019s view that certain images of a monkey weren\u2019t copyrightable because it believes that the monkey authored the images. Mr. Slater wrote us to assert \u201c\u2026that these images were ALL taken on … <\/p>\n

Continue reading “More about the Monkey and the Selfie”<\/span><\/a><\/p>\n","protected":false},"author":105,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[248,249,247,245,24,250,5,232,235],"ppma_author":[251],"class_list":["post-77","post","type-post","status-publish","format-standard","hentry","category-general","tag-animal_copyright","tag-animal_rights","tag-artificial_intelligence","tag-compendium-of-copyright","tag-copyright","tag-copyright_office","tag-mark-fischer","tag-monkey","tag-selfie"],"authors":[{"term_id":251,"user_id":105,"is_guest":0,"slug":"mafischer","display_name":"Mark A. Fischer","avatar_url":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-content\/uploads\/sites\/13\/2014\/08\/fischermark-125x150.jpg","author_category":"","last_name":"Fischer","first_name":"Mark A.","job_title":"","user_url":"http:\/\/www.duanemorris.com\/attorneys\/markafischer.html","description":"Read Mark's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/posts\/77","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/users\/105"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/comments?post=77"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/posts\/77\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/media?parent=77"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/categories?post=77"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/tags?post=77"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/newmedialaw\/wp-json\/wp\/v2\/ppma_author?post=77"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}