Back in 2011, British photographer, David Slater, set out to Indonesia to photograph the endangered macaque. While he was trying to get his shots, one wily primate snagged his camera and took hundreds of selfies. A few years later, when one particularly great picture appeared on the Wikimedia multimedia repository, Slater sent a takedown notice to the organization, claiming ownership over the photo. Wikimedia disagreed, arguing that no one owned the photo. Since the monkey took it, not Slater, Wikimedia was free to use the image as it wanted.

Fast-forward to 2015 when PETA — People for the Ethical Treatment of Animals — filed a lawsuit in the Northern District of California against Slater, claiming that Naruto — the selfie-taking macaque — deserved the money Slater made off of the photo, because the primate was the true owner of the copyright to the photo.

PETA’s argument here was simple: Naruto is the author of the photographs because he took the photos, through “his independent, autonomous actions” and “understanding the cause-and-effect relationship between pressing the shutter release, the noise off the shutter, and the change to his reflection in the camera lenses.” As the author, then, Naruto owns the copyright and Slater improperly profited off the photo.

Even though this argument may be easy to understand, it is nevertheless entirely wrong. Simply stated, animals can’t be authors under copyright law, and thus Naruto can’t own the copyright to the photo. The 3rd Edition of the Compendium of Copyright Office Practices, the manual that the copyright office uses to make decisions regarding copyright registrations, states that “to qualify as a work of ‘authorship’ a work must be created by a human being.” Full stop; case closed; end of story, right?

Unsurprisingly the district court disagreed with PETA and sided with the copyright office. Since animals can’t be authors, the court dismissed the case for failing to state an actual claim and because Naruto does not have standing to bring this case. Removing the legal jargon, this means that Naruto can’t bring a lawsuit because it doesn’t hold any rights to the photo. As such, the case must be dismissed.

Now PETA is back, appealing to the 9th Circuit Court of Appeals, to overturn this order. The organization will almost certainly lose this case on the same grounds as the order from the district court. While PETA may be taking up this case simply to take a stand about the agency of animals, this case seems a bit foolish. It’s very unlikely the court finds in their favor, and it could close the door to the issue forever.

Yet even though this will probably be an easy case for the Court of Appeals to decide, it still raises some interesting questions to consider as we contemplate what we want the future of copyright law to look like. With the continual development of automation and AI technology, should we consider vesting copyright in those machines or in their creators for these works?

Recently, in fact, there has been some real development in this area. Here are just two examples: First, Google AI researchers created a digital synthesizer program that they hope will create its own music. And Second, Microsoft created an AI program that created a painting mimicking the style of Rembrandt, but what was actually an original work by the AI.

We can probably assume the work that either AI system produces will not be copyrighted. In the same section that deals with animal authorship, the Copyright Compendium holds that “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from human author.” And practically this makes sense. There is a serious slippery slope if non-human creation can be copyrighted and the issues it could be difficult to resolve.

However, as we see more AI systems being able to independently create art, and as we see automation take over so many things, there’s an important question of who owns the IP for those creations. Right now, the answer has to be “no one” but you can imagine that not satisfying the potential owners. Consider if someone created a successful AI robot pop star that was able to create its own music. Someone would want to control the rights to the songs, because otherwise everyone would be free to copy them. Currently, the programmers could control the patent and the copyright to the software, but not the original music it produces. Sure this is nearly the plot of a William Gibson novel, but it doesn’t seem that far-fetched, any more.

So nope, neither monkeys nor computers can be authors and they can’t own copyrights, at least right now. And PETA, you’re probably going to lose again. But maybe this isn’t the best answer for the future.


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