Monday, July 18, 2011

The Majesty of the Law

A company has bought the "rights" to a self-photo which a macaque shot in Sulawesi:

As BoingBoing points out:
Caters News Agency claims to have bought exclusive rights to the iconic self-portrait taken by a macaque that snatched a photographer's camera while the latter was shooting on Sulawesi. Caters has sent copyright threats to some sites that reproduced the image, prompting Techdirt (one of the nastygram recipients) to delve deeply into the question of the copyrightability of works created by non-humans.

Under US law (we'll deal with elsewhere soon), you have to have made the creative contributions (the copyrightable aspects) to the image to have it qualify for any copyright protection (and then, it's only the creative aspects that get the copyright). Thus, you could argue that if the photographer had set up the camera, framed the shot, and simply let the monkey click the shutter, perhaps there is some copyright there (though, even then it would likely be limited to some of the framing, and not much else). But David Slater has already admitted that the monkeys found a camera he had left out by accident and that he did not have anything to do with setting up the shot. He's stated that the monkeys were playing with the shiny objects and when one pushed the shutter, the noise interested them and they kept it up. It would be difficult to argue he made any sort of creative contribution here to warrant copyright.

Can the monkeys get the copyright? No. As Justin Levine kindly pointed out, according to the rules published by the US Copyright Office:

503.03 Works not capable of supporting a copyright claim.

Claims to copyright in the following works cannot be registered in the Copyright Office:
503.03(a) Works-not originated by a human author.
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable

There was no "human authorship" so Caters can't buy the "copyright".

I'm quite unhappy about this situation. The world would be so much more interesting if we could declare property rights on third party (non-human) events. E.g., raindrops falling from the sky. Why can't I patent or copyright or declare "property rights" over that. Seems unfair. Somebody must be responsible for raindrops forming and falling. I'm willing to step up to the plate and declare "I did it, so I own it!" Obviously the religious zealots would declare God has ownership over the rain and when you get right down to it, ownership over everything in the economy and every material thing, so yes, God owns us, so we are his chattel which is a fancy word for slaves! What fun. This would keep the lawyers and judges gainfully employed for decades.

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