Monkey see, monkey do, monkey no copyright

August 22, 2014

The Copyright Office has now weighed in on the question of whether the now-famous “monkey selfie” is protected by copyright (see my earlier postings here and here) with a resounding “NO.”  “Materials produced solely by nature, by plants, or by animals are not copyrightable.” . . . [T]he [Copyright] Office will refuse to register a claim if it determines that a human being did not create the work.”

OK, it’s a bit ridiculous – and not, to be fair, the focus of this 1200-page Copyright Office report.  But it’s only a bit ridiculous – there are some serious and rather important copyright issues involved in all this.  The Report goes on to state that musical works, for instance, like all works of authorship, must be of human origin; thus, a work created by solely by an animal would not be copyrightable, nor would a work, more plausibly, generated entirely by a mechanical or an automated process. And similarly, a choreographic work performed by animals, machines, or other animate or inanimate objects is not copyrightable.  These are the kinds of things copyright lawyers are going to be fighting about more and more, take my word for it, over the next few years as claims involving AI programs and similar non-human agents get more valuable and more common.

[Thanks to Jerry Lewis for the pointer]

David G. Post is a Sr. Fellow at the New America Foundation's Open Technology Institute. He taught intellectual property/Internet law at Georgetown and Temple Universities, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace. Views expressed are his own and should not be attributed to his affiliated institutions.
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