Artwork Created by Animals Is Not Copyright Eligible

 

Macaca_nigra_self-portrait

The U.S. Copyright Office has publicly announced that it will not grant copyright protection to artwork created by animals.

This issue gained attention recently, when photographer David Slater fought the Wikimedia Foundation regarding rights to photographs taken by monkeys on his camera.  In 2011, Mr. Slater traveled to Indonesia.  After coming upon some monkeys while walking through a national park, he set up his camera and walked away briefly.  He returned to find that the monkeys, including the crested black macaque pictured at right, were taking photographs using his camera.  Due to the popularity of the monkey’s grin, the term “monkey selfie” was born.

The photos ended up on Wikimedia Commons, and when Mr. Slater asked they be taken down, Wikimedia refused.  Mr. Slater claimed he owned rights to the photographs on the basis that he owned the camera the animals used to capture the images.

His logic does not necessarily jive with copyright laws.  Under basic copyright principles, the author or creator of a work owns the copyright to the work unless it qualifies as a work-made-for-hire.  Under that principle, the monkey would own the copyright to the photo, but obviously the law does not allow animals to own property.

This monkey selfie is not a unique instance of animal artwork.  The Oklahoma City Zoo has an annual fundraiser in which artwork created by its animals is sold at auction.  Check out the Zoo’s Art Gone Wild event to see samples of the animals’ artwork.  Zoo Miami has similarly sold paintings created by a Matschie’s Tree Kangaroo.  Finally, for a gallery of other painting animals, click here (my favorite is the elephant’s painting).

Ultimately, the Copyright Office has had the last word on this issue.  The Office refuses to register a copyright for any artwork that is determined to have not been made by a human.  The Copyright Office has released the following rules regarding non-human authors:

The copyright law only protects “the fruits of intellectual labor” that “are founded in the
creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because
copyright law is limited to “original intellectual conceptions of the author,” the Office
will refuse to register a claim if it determines that a human being did not create the
work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

The Office will not register works produced by nature, animals, or plants. Likewise, the
Office cannot register a work purportedly created by divine or supernatural beings,
although the Office may register a work where the application or the deposit copy(ies)
state that the work was inspired by a divine spirit.

Examples:
• A photograph taken by a monkey.
• A mural painted by an elephant.
• A claim based on the appearance of actual animal skin.
• A claim based on driftwood that has been shaped and smoothed by
the ocean.
• A claim based on cut marks, defects, and other qualities found in
natural stone.
• An application for a song naming the Holy Spirit as the author of the
work.

Similarly, the 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.

Examples:
• Reducing or enlarging the size of a preexisting work of authorship.
• Making changes to a preexisting work of authorship that are
dictated by manufacturing or materials requirements.
• Converting a work from analog to digital format, such as
transferring a motion picture from VHS to DVD.
• Declicking or reducing the noise in a preexisting sound recording or
converting a sound recording from monaural to stereo sound.
• Transposing a song from B major to C major.
• Medical imaging produced by x-rays, ultrasounds, magnetic
resonance imaging, or other diagnostic equipment.
• A claim based on a mechanical weaving process that randomly
produces irregular shapes in the fabric without any discernible
pattern.

—  Compendium of the The U.S. Copyright Office Practice, 3rd Edition, Public Draft dated 8/19/2014

The lesson for those of us who don’t face the risk of wild monkeys grabbing our cameras:  Artwork created by our pets is in the public domain.