{IP Law} U.S. Copyright Office on Monkey Selfies

In a previous post, I wrote about the tiff between wildlife photographer David Slater and Wikimedia Foundation over the monkey selfies taken using Slater's camera that Wikimedia has made freely available at Wikimedia Commons.

The U.S. Copyright Office appears to be of the same position as Wikimedia that monkey selfies are not protected by copyright.

Last 19 August 2014, the public draft of the Compendium of U.S. Copyright Office Practices (3rd ed.) was released.

Notably, the public draft states, viz:

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.

• 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.

The draft will still be reviewed, but shall take effect in mid-December.

In the Philippines, I expect the treatment of monkey selfies to be the same. Our Intellectual Property Code (R.A. No. 8293, §172.1) states:

Literary and artistic works, hereinafter referred to as “works”, are original intellectual creations in the literary and artistic domain protected from the moment of their creation xxx

Applying the same logic as the U.S. Copyright Office, the Philippine copyright law only protects “original intellectual creations,” and excludes works that are not created by a human being.

Seems like a sure-win for Wikimedia, but I think Slater will still try to make his case. The issue here is not really whether a work created by a monkey is the subject of copyright protection. As far as Slater is concerned, the monkey is NOT the author of the selfies to begin with. Slater argues that, since it was he who worked out the settings, he should be credited as the author of the photographs, while the monkey was like an assistant.

If you ask me, I don’t buy it. After all, aren’t selfies exactly that—self-portraits?