On August 19, 2014, the Register of Copyrights, Maria A. Pallante, released a public draft of the Compendium of U.S. Copyright Office Practices, Third Edition (the “Compendium Third Edition”).
In the draft, the U.S. Copyright Office makes it clear that a photograph taken by a monkey is not considered registrable because it was not created by a human being. Thus, the monkey “selfie” that has attracted so much media attention in recent weeks cannot be registered.
The U.S. Copyright Office explains under Section 306:
The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. 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).
In addition to referring to the example of a “photograph taken by a monkey” and “a mural painted by an elephant”, the section refers to the appearance of various items in nature, including the appearance of an animal skin, driftwood and natural stones. As these were not created by a human being, according to the draft Compendium Third Edition, none of these items will be registered by the U.S. Copyright Office. Whether this will result in an end to assertions of ownership and infringement claims relating to such works remain to be seen.
The draft Compendium Third Edition consists of more than 1200 pages and is a welcome source of administrative practices before the U.S. Copyright Office. The Compendium Third Edition will remain in draft form for 120 days pending final review and implementation. It is expected to take effect on or around December 15, 2014.