First, let me apologize for the title of this post. I just couldn’t resist.
Last evening I decided to do a smidge of research into the issue of who would own the copyright if the monkey selfie had happened here or to an American photographer. Just a smidge of research, mind you–not comprehensive because, hey, I have to be a real attorney to my real clients and, although I love love love research (as everyone in my firm knows: I am the nerd), I can’t spend all my time looking up stuff for academic pursuits like this.
Anyway, here’s what I found…
First, I downloaded the pdf of the Copyright Act–the whole thing including appendices. Then I searched various terms to see if the statute spoke directly on any of the issue. I looked up non-human, human, animal, and for good measure, machine. Human appears 3 times and non-human not at all; animal appears once (and that was in the text about the Uruguay Agreement about protecting animal life); and, machine appears 28 times (mostly about methods of displaying or performing works). I also looked up Author, which is all over the place, of course, but is never defined as human exclusively in any way at all.
So, in the statute itself, there is no requirement that an author be human. Next step, look at the case law to see what the courts have said about non-humans and copyright ownership. There I found something fascinating: Urantia Foundation v. Maaherra, 114 F. 3d 955 (9th Cir. 1997).
In Urantia, the work at issue was a text that was, according to both parties, “authored by celestial beings and transcribed, compiled and collected by mere mortals.” The court thus looked at the authorship issue in some detail as “[a] threshold issue in this case is whether the work, because it is claimed to embody the words of celestial beings rather than human beings, is copyrightable at all.”
The defendant claimed that the work was not copyrightable at all because of the non-human authorship. The court noted that “The copyright laws, of course, do not expressly require ‘human’ authorship […]” but pointed out that, in reality, the protections of copyright are for the tangible works that involve some human effort. The court then expounded on how even if the original authorship here was by celestial (non-human) beings, humans were involved in getting the work into a tangible form that humans could then access (read). Importantly for our monkey problem, the court noted that Feist put the bar for creativity very low so as long as a human (or humans) did something to contribute to making this work, then the copyright did exist and vested in those humans:
Thus, notwithstanding the Urantia Book’s claimed non-human origin, the Papers in the form in which they were originally organized and compiled by the members of the Contact Commission were at least partially the product of human creativity. The Papers thus did not belong to that “narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Feist, 499 U.S. at 359, 111 S.Ct. at 1294 (citation omitted).
Urantia Foundation at 959.
In the case of the monkey selfie, our imaginary American photographer similarly made the work. He took the material from the non-human “provider” and put it into a form for human consumption and appreciation. If it were not for the human, those files would only exist within the camera–never making it out into the world. As far as creativity is concerned, at the very least the photographer tweaked the files (I’m sure) when converting them from RAW and he selected which ones to keep and which to delete.
Therefore, I would argue, that under Urantia, our imaginary American photographer is the copyright owner of the work even though the monkey snapped the photos.