The Monkey In The Machine

In 2011, a Celebes crested macaque took a shot that was heard 'round the world. In a jungle in Indonesia, it depressed the remote trigger button of a photographer's camera, effectively taking a selfie. The "monkey selfie" has ignited a great deal of commentary musing on the nature of copyright ownership. The human photographer claimed that he was the author of the photograph because he had "engineered" the shot and that "it was my artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken." Wikimedia Commons, among others, disagreed and posted the photograph on its website claiming that the photograph was in the public domain because its true author was a monkey. The U.S. Copyright Office has implicitly agreed with Wikimedia by including "a photograph taken by a monkey" in a list of examples of unprotectable "Works that Lack Human Authorship" in section 313.2 of the most recent edition of the Compendium of the U.S. Copyright Office Practices, Third Edition.

The U.S. Copyright Office notes in the Compendium that "to qualify as a work of 'authorship' a work must be created by a human being." Works "produced by nature, animals, or plants" are not copyrightable and will not be registered by the Copyright Office. The Copyright Office's position on works created by animals has received a lot of press, but its impact on the real world is dubious (that is, unless one is concerned that all selfies could be deemed to be the product of animals of questionable intellectual agency ...). Considerably more important is the remainder of section 313.2 - "Similarly, the [Copyright] Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author."

Where Are the Humans?

The Copyright Office's requirement that a human have "creative input or intervention" appears to have its roots in the first court decision that struggled with the interplay between man and machine - Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (U.S. 1884). There the Supreme Court decided for the first time whether copyright could extend to a photograph - the one in question being of the author Oscar Wilde. Defendants argued that photography required very little artistic intervention - "It is simply the manual operation, by the...