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U.S. Copyright Office: Non-Humans Need Not Apply

Regina M. Joseph

Regina M. Joseph

British nature photographer David Slater reportedly took an expensive trip to Indonesia to snap nature pictures. He set up his equipment in the wild and left it for a while to see what it would pick up. And it did. A macaca nigra monkey became intrigued and snapped hundreds of pictures of itself, some of which were even in focus. (Among many reports: Who owns the copyright to monkey’s selfie?)

Monkey SelfieThe social media site Wikimedia Commons posted some of his pictures. On its main page, Wikimedia advertises that it has a “database of 22,330,196 freely usable media files to which anyone can contribute.”

Since Mr. Slater took issue with one of his most popular pictures being offered for free, he delivered a “take down” request. Wikimedia refused. The chief communications officer of Wikimedia reportedly based its refusal on the fact that the picture was of a monkey, therefore the monkey owns the copyright; for the photographer to own it, he must make substantial changes in order to own the copyright.

The United States Copyright Office weighed in. On August 19, 2014, it released a draft Third Edition of its “Compendium of U.S. Copyright Office Practices.” In Section 306 (p. 54), it expanded on the requirement that an original work of authorship must be created by a human being to be capable of registration with the Copyright Office:

“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 applicable 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.”

This humorous story has another side. Mr. Slater makes a living from nature photography, and the trip to Indonesia was reportedly very expensive. He will not be reimbursed for setting in motion the situation in which the monkey took its selfie.

The ability of artists of all media to earn money from their craft is eroding. Some might find the increasing trend of free art to be a tremendous advancement. In some instances, I agree. Having the great classics freely available on-line has its benefits. The same argument can be made for the original source materials for law. (Who owns the law? Technology reignites the war over just how public documents should be)

For others, the arts have turned into a labor of love, rather than a livelihood. (E.g., Authors’ incomes collapse to ‘abject’ levels) Increasingly, the money makers are those providing channels to market.