Monkey making pictures

NOTES on the silly-season story about a monkey making pictures follow soon. Short version: Wikipedia thought they were taking a frightfully clever anti-copyright position, and it seems to have backfired on them.

Certainly, they've got exposure for photographer David Slater to explain that he does, in fact, need cash to take good pictures, and in particular to tell BBC News that it was only when the image in question started to bring in licence fees that he made back the travel costs of his trip.

But Wikipedia almost certainly thought they were striking a blow against the whole idea of copyright by claiming that the image was uncopyrightable because a non-human had pushed the shutter. Playing them at their own game for a moment: what of their claim that the image is in the public domain?

They claim support from a US Copyright Office Practice Note, which holds:

Copyright Compendium § 202.02(b):

The term "authorship" implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.

BUT US copyright law - United States Code 17 provides:

§ 102 . Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

There's no mention there of species, personhood or anything. However, in the Definitions (§ 101) we find:

An "anonymous work" is a work on the copies or phonorecords of which no natural person is identified as author.

So... do monkey photos and elephant paintings have protection as anonymous works, since neither animal author is likely to qualify as a "natural person"? That'd be a matter for the Supreme Court.

Of course, it's necessary to distinguish between the works of captive creatures (works made for hire - esp. for actual peanuts) and wild (freelance) authors.

UK copyright law doesn't seem to mention species either.

French law on Authors' Rights, in contrast, opens with a declaration that it exists to protect "works of the spirit" So that'd be a theological matter. Christian monkeys don't have souls; but could they convert to Jainism and claim protection under Indian law?

Chrissakes and by Hanuman's ears, just pay the photographer.

© Mike Holderness