Only An Author Can Create A Copyright — That’s No Monkey Business

The author who creates a work initially owns the copyright in the work.  The writer who writes the next novel, the painter who magically makes the canvas come alive, the musician who records the next hit all initially own the copyright in their work.

But who is an author?  Or rather, can an author be an “it”?  A few days ago, I laughed as I read about a macaque monkey who snapped away with an unattended camera and took this self-portrait.  The blog techdirt wondered who owns the copyright in the photograph.

As an avid photographer, I am sympathetic to photographers and the issues that they face.  But, photographer David Slater probably never owned the copyright to the photographs that the monkeys took.  Carter News paid him for the photographs regardless so for Mr. Slater, he probably doesn’t care too much one way or the other.

So getting back to techdirt’s question, who does own the copyright?  Probably nobody.  Copyright protects “original works of authorship fixed in any tangible medium of expression.”  Although the copyright statutes never define who an “author” is, the language of the statute consistently refer to “persons”, “natural persons” and other language that limits copyright protection to those works created by people.

Every once in a while, a court is faced with the question of who owns a copyright in a book “authored” by non-human spiritual beings.  The courts hold that copyright laws do not protect the creations of works by non-humans — whether spiritual beings, aliens or the like.  Sadly, if E.T. created any works during his short stay on earth, U.S. copyright will not protect those works.

Actually, this does come up more often when discussing computer programs and computer-generated works.  But, to answer techdirt’s question, only works created by humans receive copyright protection.  Different arguments may arise if Mr. Slater had directed the monkeys, but it doesn’t sound like he did so here.

Anyone want to make the case that U.S. copyright law protects the monkey’s masterpiece?


About Dave Rein

Dave Rein focuses on and will continue to focus on copyright, trademark and patent litigation until the National Geographic adds him to its staff of photographers. In addition to counseling and litigating on behalf of the firm’s clients, he also helps clients through the Kansas City Volunteer Lawyers and Accountants for the Arts where he also serves as a board member. Prior to representing clients, Dave clerked for a federal district court judge who kindly provided invaluable advice and mentorship
This entry was posted in Copyright, Photography and tagged , , , , . Bookmark the permalink.

One Response to Only An Author Can Create A Copyright — That’s No Monkey Business

  1. AV says:

    The world’s most famous Macaque monkey “self-portrait photo artist” is back in the news. But this time, the photographer, David Slater, is claiming copyright to those images and wants Wikimedia and other entities to stop displaying “his” images.

    I echo Dave’s copyright assessment: You have to have (some) human intellectual authorship in order to receive a (United States) copyright.

    The US Copyright Office would also likely concur and not grant the photographer a Certificate of Registration for any of “his” Macaque photographs. Compendium II: Copyright Office Practices; 503.03(a) Works-not originated by a human author:

    “In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.”

    Since Slater hails from the UK, perhaps he would have a better chance to claim authorship and one or more European copyrights, as those foreign courts may be more favorable to his unique situation.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s