copyright question Dear Doc:

What do an elephant, a monkey, and the United States Federal Government have in common?

The Riddler

Dear Riddler:

The answer to your query is: none of them can own copyrights! (Bet you didn’t see that one coming! BIFF! POW! BAM!!)

Under federal copyright law (17 U.S.C. §101 et seq.) works created by the federal government cannot be protected by copyright law – the taxpayers paid for it, so we all get the right to use it. For entirely other reasons, non-human animals cannot be authors, and there is no copyright for what they create – it’s also in the public domain. Now, I know what you’re thinking…if corporations can be authors under federal law, and can author works in which they own copyright, what sense does it make to say that highly intelligent, not to mention cute elephants that paint wonderful watercolors, and monkeys who are photographers can’t be legal authors? Besides, how do we KNOW that monkeys don’t have copyrights?

Well “Rid”, in 2011, photographer David Slater had his camera taken by a very self-aware monkey in Indonesia. The monkey snapped a “selfie” which later made its way into the web site Wikimedia Commons. Here’s the photo in question:

When Mr. Slater wrote to Wikimedia, demanding that it remove the photo, their response was, in effect, “monkeys don’t have copyrights, so the photo is in the public domain, and we don’t care that it was your camera.” That may sound harsh, but the United States Copyright Office, in a recently-published proposed guideline said the same thing:

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….

It turns out that the legal justification for this policy is, “The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” (ZAP!) – So…it turns out that the reasoning IS the same! When was the last time that you thought that there was even a shred of “creative powers of the mind” in the government?

It may yet turn out that animals (at least smart ones like dolphins) have “creative powers of the mind”. That would certainly make a monkey out of the guys at the Copyright Office.

As Douglas Adams wrote in “A Hitchhiker’s Guide to the Galaxy,”

…on the planet Earth, man had always assumed that he was more intelligent than dolphins because he had achieved so much-the wheel, New York, wars and so on-whilst all the dolphins had ever done was muck about in the water having a good time. But conversely, the dolphins had always believed that they were far more intelligent than man-for precisely the same reasons.

So…if you have a talented pet that is especially creative, I suggest that you do what all great teachers do: take all the credit. Then call an attorney at LW&H to register copyright, but don’t dare tell them that your Norwegian Blue is the author. After all, the plumage don’t enter into it! (Just kidding!)

The Doc.

— Lawrence A. Husick, Esq.