Last week, the Copyright Office issued new guidance to clarify that it will only register copyrights for creative work produced by humans. Animals and computers (without human intervention) don’t possess “creative powers of the mind” in the same way that humans do. You’re likewise out of luck if you’re a “divine or supernatural being.”

The Copyright Office’s decision is a byproduct of a copyright feud between Wikipedia and nature photographer David Slater. Wikipedia used a photo of a macaque in an article about macaques. David Slater, a wildlife photographer, requested Wikipedia to take it down because he claimed a copyright on it. The problem: it was a selfie. A curious macaque in the Indonesian rainforest stole Slater’s camera and began artfully composing many shots. By that I mean it accidentally snapped hundreds of pictures.  Among them was a diamond: a perfectly centered photo of the monkey smiling wide for the camera. Because he had traveled to Indonesia with the purpose of taking animal pictures, placed the camera on tripod, and set the lighting settings, Slater claimed that he had done enough intellectually as a human being to own the copyright to the picture.

Wikipedia rejected Slater’s claim because technically, the monkey snapped the picture. In an interpretation of copyright law that smacks of he who smelt it dealt it, Wikipedia asserted that the person (or, animal) that actually operated the shutter was the one who created the work of art. Thus, the monkey created the photo and owned the copyright.

Wikipedia is right. It has long been the law that a human can’t claim a copyright if most of the work was done by an animal. And the animal can’t hold a copyright, either, so any animal-produced pictures become public domain for anyone to use. But how many creative steps need to be taken before a human’s contribution is substantial enough to display the “creative powers of the mind” necessary to receive copyright protection, even if some non-intellectual animal operates the shutter? Is setting up a tripod and fiddling with the white balance enough to snag a copyright?

A lawsuit will sort all that out. Slater is considering suing Wikipedia to remove the photo and establish his right to the copyright. Slater believes the Copyright Office’s guidance is “misleading” and that enough of his creative energy went into the photo to claim his copyright. He also called Wikipedia a “band of communists” in an interview, though, so who knows how serious he really is.

–Tom Hayden

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One Response to Copyright Office Decides Monkeys Can’t Be Authors

  1. Erin Webb says:

    I can understand Slater’s frustration with the situation. Traveling to Indonesia for the express purpose of capturing animal photos and going through the trouble of setting up a tripod should matter – especially when it affects his livelihood. However, although his creative energies set the stage and focused the photograph, it was ultimately the monkey that took the photo.