There has much much Internet mirth about the recent publication of the Third Edition of the Compendium of U.S. Copyright Office Practices, more specifically, the Compendium’s statement that “the Office will refuse to register a claim if it determines that a human being did not create the work.”

My IP partner Lawrence Robbins has an excellent run-down of the new publication and the case that either inspired or spotlighted it here (“No, Your Musical Cat and Artistic Dog Aren’t Going to Make You Rich”), at the Art Law Report’s sister blog Trending Trademarks (bookmark it!).  In a nutshell, a crested black macaque picked up a camera owned by a British nature photographer named David Slater, and pressed the shutter button.  The result has become known as the “monkey selfie.” 

The Copyright Office explained its Compendium provision about non-humans based on the premise that copyright can only attach to “fruits of intellectual labor” that are “founded in the creative powers of the mind,” and exempted from possible registration, among others, (a) a photograph taken by a monkey, and (b) a mural painted by an elephant.

While understandable from a certain perspective, my thoughts are that this categorical prohibition goes too far.  As Donn Zaretsky mused when the Compendium was published,

the more I’ve thought about this issue, the less obvious the conclusion has seemed. The problem with the actual case under discussion is that the photographer admitted it was an accident; the monkey just picked up his equipment and started snapping the shutter.  But imagine a photographer whose work is to leave a camera in a room with various animals and waits for them to press the shutter, or perhaps sets up tripwires in the room that causes the camera to shoot.  It’s not so obvious to me that the photographer shouldn’t own the copyright in the resulting photos in that situation.

I agree.  It may well be that Slater’s photograph would have failed to qualify on its own, but the broad ruling is not entirely consistent with the creative process.