Monkeys Can’t Get a Copyright

The U.S. Copyright Office includes monkeys on a list of things that do not qualify for copyright protection.

Self-portrait by the depicted Macaca nigra female
National Journal
Laura Ryan
Aug. 20, 2014, 12:15 p.m.

If a mon­key takes a selfie, it does not qual­i­fy for copy­right pro­tec­tion in the U.S., even if the mon­key’s skills rival those of Kim Kar­dashi­an. The same goes for por­trait-paint­ing ele­phants.

In the new­est edi­tion of the of­fice’s guidelines re­leased Tues­day, the U.S. Copy­right Of­fice is crys­tal-clear that only hu­mans qual­i­fy for copy­right pro­tec­tion.

“The copy­right law only pro­tects ‘the fruits of in­tel­lec­tu­al labor’ that ‘are foun­ded in the cre­at­ive powers of the mind,’ ” the U.S. Copy­right Of­fice writes in the first ma­jor up­date to the manu­al in 30 years. “The Of­fice will not re­gister works pro­duced by nature, an­im­als, or plants.”

Ghosts and their brethren are sim­il­arly out of luck. “The Of­fice can­not re­gister a work pur­portedly cre­ated by di­vine or su­per­nat­ur­al be­ing,” the new up­date states.

The “hu­man au­thor” re­quire­ment is not a new ad­di­tion, but the an­im­al ex­ample is new and relates to the on­go­ing dis­pute between Wiki­me­dia, the non­profit be­hind Wiki­pe­dia, and Brit­ish pho­to­graph Dav­id Slater over who owns the rights to a photo taken by an an­im­al.

The dis­pute dates back to 2011 when Slater’s cam­era was hi­jacked by a group of imp­ish macaques dur­ing vis­it to In­done­sia. The mis­chiev­ous mon­keys took dozens of pho­tos, but one gem emerged: a fo­cused self-por­trait of a grin­ning fe­male mon­key.

Wiki­me­dia ad­ded the photo to its roy­alty-free com­mons, and denied Slater’s re­quest to take it down on the grounds that an im­age taken by an an­im­al is “un­copy­right­able.”

The Copy­right Of­fice de­lib­er­ately ad­ded real-life ex­amples to the new edi­tion with the goal of avoid­ing con­fu­sion, ac­cord­ing to Bill Roberts, act­ing as­so­ci­ate re­gister of copy­rights and dir­ect­or of the of­fice of pub­lic in­form­a­tion.

The 2,000-plus-page manu­al, called the Com­pen­di­um of U.S. Copy­right Of­fice Prac­tices, is not law but rather a set of guidelines the of­fice uses to de­cide wheth­er to add something to the fed­er­al re­gister. It is im­port­ant be­cause it lifts the veil on how the of­fice makes its de­cision. The new­est up­date aims to ad­dress the changes to copy­right in the di­git­al age.

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