No, monkeys can’t own copyrights. But please read on. This relatively simple answer to a question nobody is seriously asking hasn’t prevented the emergence of a strange copyright controversy over a series of monkey-taken photographs, including the self-portrait on the left. Wildlife photographer David Slater was visiting a North Sulawesi national park in Indonesia when he left his camera unattended. A crested black macaque grabbed the camera and managed to snap some stunning images. The photographs ended up in the July 5 edition of the UK’s Daily Mail, some of them bearing the copyright notices of the Caters News Agency.
That’s when things started to get weird.
Online magazine Techdirt reprinted the photographs a couple of days later, expressed doubt as to whether Caters could actually own the copyright and queried: “Can a Monkey License its Copyrights to a News Agency?”
The following Monday, Caters sent a ersatz take-down notice to Techdirt, claiming to represent Mr. Slater and asking that the images be removed from Techdirt’s website. Techdirt refused, claiming that the images were in the public domain and that its use of them was fair use. Slater, in a statement reprinted by Techdirt, responded that, contrary to the impression given by the original Daily Mail story, the photograph was not so much an accident as a planned artistic endeavor. “Until I hear from the monkey’s lawyers,” Slater said, “I will stick to the belief that I own the copyright.”
So who’s right? We are unlikely to find out anytime soon, because there is really nothing here to sue over.
First, as noted in another blog entry earlier this year, the republishing of a photograph for the purpose of discussing the copyright issues surrounding that photograph is almost certainly fair use, and it’s doubtful that Caters will bother spending the money to test that theory, at least in the U.S.
At the same time, Techdirt’s tongue-in-cheek suggestion that the monkey owns the copyright is a non-starter. As Techdirt itself notes, Copyright Office Rule 503.03(a) states that
In order to be entitled to copyright registration, a work must be the product of human authorship . . . 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.
Notwithstanding this rule, neither the Copyright Act nor the Constitution explicitly limits copyright authorship to human beings. However, the few arguments advanced in favor of expanding eligibility for authorship beyond human beings are unconvincing. For one thing, monkeys and other nonhumans don’t need monetary incentives to create, which is arguably the whole point of copyright law in the first place. And who exactly is going to sue on behalf of the monkey anyway?
But even though this controversy remains mostly academic, Techdirt’s provocative position has raised at least one very interesting issue. A monkey can’t own a copyright, but can a monkey or some other non-human agency prevent a human from owning a copyright, thus pushing the work into the public domain? What if, for example, all the creative and copyrightable aspects of a work are attributable to a super-intelligent computer which for one reason or another randomly or arbitrarily created it? Will that prevent the owner or the programmer of the computer from becoming an author under the Copyright Act? As artificial intelligence becomes more sophisticated, these issues are likely to arise again and again with each new generation of computers.
And if they ever invent a super-intelligent monkey robot, hold on to your camera.