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Copyright Protection for Non-Humans: “A New Frontier” – AMD LAW GROUP

Copyright Protection for Non-Humans: “A New Frontier”

Originally posted 2018-07-12 5:32:41

monkey-selfieBy Renata Mitchell | Editor: Kristen Daly |

If a monkey takes a selfie, does he own the picture?

In 2011, British photographer David Slater traveled to Indonesia to explore the beauty of Asia’s wildlife. Shortly after setting up his tripod in the forest, he stepped away for some time; upon returning, Slater discovered that a black macaque had used his camera to take pictures of itself. These pictures famously became known as the “monkey selfie.”

The question that arises from such a scenario is: who owns the right to the images of the monkey? The criteria for gaining copyright protection in the U.S. requires three components: the work “must be fixed in a tangible medium,” the work must be “original,” and the work has to have an “author.” The monkey selfie qualified for protection under the first two requirements, but unfortunately fails to meet the “authorship” requirement. According to the U.S. Copyright Office, specifically the Compendium of U.S. Copyright practices in Section 313.2, “to qualify as a work of ‘authorship,’ a work must be created by a human being…the Office will not register works produced by nature, animals, or plants.” It even goes so far as to provide the example of a photograph taken by a monkey to clarify that the monkey does not have copyright protection. However, this provision was only added after the infamous monkey selfie gained steam in the media. Prior to the monkey selfie, there was nothing in the Compendium that stated that authorship was limited to human beings. This could mean that at the time the picture was taken, the monkey would have met all requirements for registration of a copyright.

Rather than adhering to the ex post facto Compendium provision, an argument of guardian ad litem may be made for the monkey’s rights. If the court can appoint someone to represent a child who is legally considered “incompetent,” then why not do the same for the monkey and animals in general?

It is not too farfetched to visualize a world in which all creatures are given copyright protection – to boldly go where copyright protection has never gone before.


Monkey Selfie: Who Owns the Copyright?

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