Posted on by Leslie

Monkey See, Monkey Do-do

Well, this does not bode well for any photographer claiming authorship of a monkey selfie when U.S. Law applies. The public draft of the Copyright Office Compendium III has just been released (more info here) and it includes the following (from Section 306: The Human Authorship Requirement):

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 application 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.

[…]

The “inspired by divine spirit” line has got to be a reference to the case I mentioned in my last post but I still wonder if the creative participation discussed in that case would not save the photographer’s claim if U.S. law applied to the UK photographer and the Indonesian monkey situation. I mean, might the photographer still be able to claim ownership of the resultant image? After all, there are still questions about how much creative input the photographer had–did he fix the color or otherwise retouch the photo, for example.

I also wonder how the Copyright Office can exclude human authorship of any photo when a human is a necessary part of the process of converting an image (be it film or digital in origin) into something consumable (viewable) by humans. In the case of photography, at least, a photographer can and does edit, correct, clean up, and otherwise work an image as well as still being a part of the actual act of developing or downloading/uploading. In the case of the monkey selfie, that image would have stayed in the camera if it had not been found, recognized as interesting for humans to see, selected, and made possible to be seen by the human photographer (even if he didn’t touch the file to clean it up in any manner). How is any of that not a contributing creative factor?

I think the CO may have it wrong when it includes “a photograph taken by a monkey” in the unregisterable examples.

3 Replies to “Monkey See, Monkey Do-do”

  1. Interesting.

    Ok so what about this.

    1. I set up a camera with a motion sensor and when a large Lynx it walks through the sensor and trips the camera to take a pre-programed # of images, is the cat a photographer?

    2. How about we use a pressure plate, say the same ones that have make a few thousand american service men single and double amputees, and when the above cat steps on the plate to complete the circuit (thats how a pressure plate works) the camera will fire a programmed # of frames. is the cat a photographer?

    3. I cover my camera housing in crab entrails, set my camera on the ocean floor just off the coast of Ibiza, and an octopus attacks my camera tripping the shutter to take 3 frames of some passing trigger fish. Will the octopus be a photographer

    4. I cover my small point and shoot in wild fig nectar and place it the tree and a small monkey picks it up licks and bits it tripping the shutter and takes a photo of female during a small young money as she grooms them. then what….?

  2. Good initiative, Leslie Burns, and good catch, Don Mirra.

    I am reminded of the case in which a bird snatched a camera that was already rolling, taking video.

    Eventually it was retrieved by the owner / operator. In this case, is the animal anything more than an inadvertent confederate in the making of the video?. The result was certainly interesting, very entertaining, BTW. Now in the world of insurance, some might say that was in some respects an Act of God – but not one that is possible without a camera, or an elephant’s paint brush.

    Perhaps the ability to copyright that “bird flight” video would hinge on the extent to which video editing was performed. Then, consider other aspects of post-production, including sound or even a voice-over.

    Defense of copyright infringement has occasionally been based on the (small) percentage of the original work that was “taken” and the percentage of that part comprising the (much larger) final work. (Think of Andy Warhol’s many appropriations, most or all of which he – presumably – successfully defended in court.)

    Would that concept be ignored in this case, when the bird served as a mere camera platform and extensive additional contributions by the photographer or other artist would be involved? (I’ll ignore for the moment the reality that bird’s work has presumably not already been copyright-protected.)

    DRA

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