Are Copyrighted Works Only By and For Humans? -- Mark A. Fischer

Why should humans own all the world’s copyrights? The question is prompted by a photograph that’s made worldwide news. In Indonesia, a female crested black macaque monkey picked up a camera owned by photographer David Slater. I won’t focus much on the story of the monkey and her selfie because that topic has already been well-discussed in the media. Yet the story sets the table for more intriguing and ultimately more important issues.

A brief recap of the story of the monkey and the selfie follows. The monkey did what a lot of us would do with a camera. She took selfies. Just as with selfies shot by people, some of the images were out of focus and poorly framed. Some of the images are of such impressive quality, though, that postings on photography-oriented websites question if a monkey could have really created them. Sounds a little like the ominous beginning of a sci-fi series in which humans underestimate animal intelligence. We know how that ends.

According to press reports, Slater says the monkey indeed did shoot the images but that Slater -- not the monkey -- is the owner. That’s presumably because Slater owns the camera and established at least some of the conditions for the photo shoots.

Slater has objected to publication of the selfie on Wikipedia. He claims that the publication is infringement of his copyright. Wikimedia, which sources the image to Wikipedia, claims that monkey-created images are not protectable under copyright because only humans can create copyrighted works.

There is some support for Wikimedia’s view. It’s true that under US law copyright protection probably extends only to works of authorship created by humans.

The Compendium II of Copyright Office Practices says in Section 202.02(b):

Human author: The term "authorship" implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants or by animals are not copyrightable.

Further, The Compendium goes on to say in Section 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.

Probably the best view of the law is that for Slater to own a valid copyright (if US law applied to the situation) he would to have had to have undertaken more to create the images, such as doing things like setting up the lighting, establishing camera angles from a camera mounted on a tripod or creating a set backdrop for the images. If Slater had not actually pushed the shutter button it shouldn’t matter. That final functional step is hardly the determination of creativity and copyright ownership.

It is beyond doubt that artificial intelligence (“AI”) machines and systems already can and will create music, art and literature. Some such works will be viable financially. If not valuable or even any good, protection is possible. Copyright protection for human-created works is not only for works of literary and artistic merit. Mediocrity is protected, too.

So should copyright law protect such non-human copyrights? Inevitably copyright law will have to do so. Perhaps, given the Citizens United line of reasoning, corporations will and should own the copyright in works created entirely by machines. That may well be a sensible result.

Animal-created copyrighted works might be a harder question to answer. My labradoodle, Madison, is talented in many ways. But I know her well enough to say with accuracy that she would much rather have a strip of bacon than a copyright. Even in recognition of the growing trend of animal rights, it may be best to keep animals and copyright lawyers apart when it comes to legal issues. Not every copyright question requires an answer.

What will be the duration of non-human copyrights? The current copyright term of protection is the life of the author plus 70 years. That duration is highly controversial for being longer than is necessary to encourage creators to create -- and incentivizing creativity is at the heart of US copyright law and philosophy. Several years ago the Supreme Court decided a case objecting to that duration when it was extended from the life of the author plus 50 years. The additional 20-year term extension was upheld.

Isn’t focusing on the 70 years portion of that formulation shortsighted? Given the biotech and biomedical revolutions and considering the nonhuman authors of the future, the lifetime portion may be the one to watch more closely as to long copyright terms. Robots obviously can have an indefinite lifespan. They and, for that matter animals, also may need different kinds of incentives to create.

With the rapidly increasing sophistication of robots and the inevitable movement toward the singularity when humans and technology become as one (in ways we probably can’t grasp today), there are far bigger questions than copyright law. But, one of the many issues is that new non-human systems will create copyrightable works of undeniable merit. Perhaps it isn’t too much to imagine a world in which both the creators and the audiences for such works are not humans, at least as we know humanity today.

Before someone shouts, “Take your stinking paws off my copyright, you damned dirty ape!” regarding ownership of the animal selfies of today, the future of copyright will someday be, to some extent, in the hands, paws and appendages of non-humans, initially as creators and perhaps ultimately as appreciative non-human audiences.

Mark A. Fischer is a partner at Duane Morris LLP. His law practice is focused on solving problems and making deals for innovative companies, institutions and individuals. Mr. Fischer’s clients are typically in the creative industries such as new media, social networking, music, interactive entertainment, information technology, software, television, publishing and toys. He may be contacted at: mafischer@duanemorris.com.

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