The plight of David Slater, a British nature photographer, has recently been in the news. Mr. Slater travelled to Indonesia in 2011 in order to photograph the crested black macaque. During the shoot, one of the animals “stole” Slater’s Nikon camera and started playing with it. Remarkably, the monkey ended up taking several “selfies,” one of which turned out strikingly clear. Because of what happened subsequently we feel like we’re on safe ground in reproducing the photo here:
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Once the photo was published and its origin became known, the Wikimedia Foundation elected to include it in its online collection of public domain images. Slater objected on grounds that he had spent the time and money to purchase the equipment and travel to Indonesia for the photo shoot and, therefore, was the owner of the copyright in the shot. Wikimedia countered that the “photographer” was the macaque and that works of art created by non-humans were not copyrightable and, therefore, properly belonged in the public domain.
Fast forward to last week, when the United States Copyright Office released a public draft of the Third Edition of the Compendium of U.S. Copyright Office Practices. The Compendium is the administrative manual of the Register of Copyrights concerning the mandate and statutory duties of the Copyright Office under Title 17 of the United States Code. See 37 C.F.R. § 201.2(b)(7). The new draft states:
The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
As examples of non-copyrightable works, the draft Compendium cites:
- A photograph taken by a monkey.
- A mural painted by an elephant.
- A claim based on the appearance of actual animal skin.
- A claim based on driftwood that has been shaped and smoothed by the ocean.
- A claim based on cut marks, defects, and other qualities found in natural stone.
Sadly, you can add “music composed by a cat” and “soft sculpture created by a dog” to that list as well. If you want to capitalize on your pet’s talents then you’ll have to stick to time-tested strategies like joining the circus or auditioning for a role on TV or in the movies.