Who Owns the Copyright? Man vs. Monkey - Fordham Intellectual Property, Media & Entertainment Law Journal
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Who Owns the Copyright? Man vs. Monkey

Who Owns the Copyright? Man vs. Monkey

Neither, Says the U.S. Copyright Office 

In a hotly contested issue, one photographer whose unattended equipment was used by a monkey to take a selfie, found himself in an expensive legal battle with Wikimedia over who owns the copyright and, consequently, the royalties of the picture—the man or the monkey.  Both sides make compelling arguments.  Wikimedia, whose mission statement is centered on the core belief that “history is a human right,” argues that by pressing the shutter the monkey would be the rightful owner of the copyright, but because non-humans can’t own copyrights in the U.S., the picture falls in the public domain.  The photographer, David Slater, argues that it was only because of his significant personal investment in creating the conditions that the photo even exists.  He goes on to make the equitable appeal that of the thousands of photos photographers take, only one may make money, and it is on the income of the one that photographers may fund their whole year of unpaid work.  Arstechnica explained, Slater could claim the intellectual property rights to the picture under UK federal law, if the image is part of his “intellectual creation.”  The Telegraph notes, however, that such a case has never been tried in court and “the outcome would be uncertain.”

According to NPR, the U.S. Copyright Office addressed this question in its newly updated manual, the Compendium of U.S. Copyright Office Practices, which will take effect in December.   Chapter 300 of the compendium discusses “ the Human Authorship Requirement,” which says that copyright protection is only granted to “’the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.”  The Office explained that it would not register works produced by nature, animals, plants, or works purportedly created by divine or supernatural beings.  The Copyright Office included the following examples of things that are not copyrightable:

    • 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 marks, defects, and other qualities in natural stone; and
    • an application for a song naming the Holy Spirit as the author of the work.

A web poll on the Telegraph’s website highlights the controversy and thorny issues surrounding this split– 43.5% of poll takers thought the photographer owned the copyright; 40.18% thought the monkey did.

Who do you think owns the copyright? The man, the monkey or the public?

Grace Aviles

Grace Aviles is a second year student at Fordham Law School and a staff member of the Fordham Intellectual Property, Media, and Entertainment Law Journal. Grace is interested in patent litigation, particularly as related to the policy overlap between IP and antitrust. In her spare time she roams New York looking for the best chocolate chip cookies (Schmakary’s, so far, with Levain a close second), writes Yelp reviews, and keeps sugar cane farmers and the dentist in business.