In Defense of Monkey Copyright [Updated]

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Thanks for your responses to my question about who if anyone owns the legal rights to a monkey photographer's work. The responses varied, although none were too favorable to the monkey. Here are some thoughts, with the disclaimer that I'm not an IP lawyer, although some of the respondents were. (As I mentioned, I've now also had the benefit of Techdirt's analysis.)

First, I think it's correct to say that you have rights in your creation even if you used somebody else's equipment to create it (unless it's a "work for hire"). If I borrow my friend's computer and write a story, I own that story. If I sit down at somebody's computer at Starbucks and write a story, I still own that story, though getting a copy of it might be a little awkward. So ownership of the camera seems irrelevant to rights in the work itself.

Second, one reader compared this situation to a photographer setting up a time-lapse shot and then coming back to find something unexpected in the frame. There it seems clear that the photographer has the rights, because of the creativity involved in setting up the shot. He doesn't lose them just because something unexpected happened. But here, these shots were not really, or at least not entirely, set up by the photographer. A monkey intervened. If you set up a time-lapse shot, and I show up while you're gone, fool with the camera and get a crystal-clear picture of Bigfoot, I'm going to claim ownership of that picture of Bigfoot. You might be able to sue me for messing up your picture, but I don't think you can get my picture of Bigfoot. YOU CAN HAVE MY PICTURE OF BIGFOOT WHEN YOU PRY IT OUT OF MY COLD DEAD HANDS or for a lot of money.

Third, you might distinguish my Bigfoot example by arguing, as another reader did, that "the difference between you and a monkey is significant." (Obviously she meant "significant" in the legal sense, not in terms of genetics, morphology or a tendency to throw feces.) But is it?

I created my picture of Bigfoot. I pointed the camera, I chose when to push the button and most importantly, I did the interpretive dance that puzzled him long enough to get him to stand still for the shot. Whether there's a meaningful difference between that and the monkey situation seems to depend on whether you think the monkey could have been engaging in creativity (there doesn't have to be much for copyright to exist), or was just acting "randomly." This gets us into the deeper question of whether nonhumans are capable of doing this.

On this question, there is some precedent but no agreement.

Congo paintingIn 2005, three paintings by a chimpanzee sold at auction for about $25,000. They had been painted by Congo, a chimpanzee at the London Zoo. Congo seems to have been a star of the art world for a while in the 1950s; Pablo Picasso supposedly bought one of Congo's 400 works. So, was Congo "painting" or just flinging paint around? (Really? A lot of people would say the same thing about Jackson Pollock.) At least one expert believed Congo was a true artist. "Congo became increasingly obsessed" with his art, Desmond Morris said. "If I tried to stop him before he had finished a painting, he would have a screaming fit." Sounds about right. (This reproduction would also be fair use, so don't try it, Estate of Congo.)

Claims of animal creativity have also been made for elephants and, less believably, a dog named "Tillamook Cheddar."

I found no copyright cases involving those artists, but there is at least some relevant precedent. An Australian reader pointed out this case and this case, in which Australian courts held that a nonhuman cannot be an "author" and/or create an "original" work. But those cases involved something "created" by a computer program, and don't address whether such a program or (as it might prefer to be called) an "artificial intelligence" – or a relatively smart animal – could be considered to have created something for copyright purposes. In America, the Copyright Office has taken the position that only human beings can make copyrightable works, saying that "[m]aterials produced solely by nature, by plants, or by animals are not copyrightable." But as the author of the law-review article in which I found that quote argues, there's no support for that in the Copyright Clause itself, which refers only to "authors."

Yes, there is a law-review article on this topic. In that article, Dane Johnson, an Oregon animal-law attorney, notes that to date the law (or at least the Copyright Office) has limited copyright to humans, but argues that there is no particular reason it should. Discussing Congo and similar cases, he states that it "appears increasingly possible that at least some animals can create or have created works that would come under copyright without question were their authors humans." If an animal could be an "author," he writes, then there's no reason that author should not have at least some rights.

Of course, monkeys can't sue (unfortunately for this blog) and so can't enforce any rights they might have. But Johnson notes that we protect certain rights of others who can't sue, by (for example) appointing guardians for infants, and that we have granted legal rights to things that technically don't exist, like corporations. He argues that we could similarly give at least limited protection to animal creations, which at least in the case of an owned animal would basically mean creating a trust for the benefit of the animal with the owner as the trustee. But if we reject that, or if an animal has no owner – as in this case, where the monkeys were free agents – then he concludes the work would be in the public domain.

A court might conclude, of course, that the photographer created at least the conditions for the picture and so should have some rights in it, especially since his alleged monkey co-author probably cannot be found. Maybe that is the most likely result today. But again, regardless of who (if anyone) owns rights in the pictures, using them as Techdirt did (or as I did) is clearly "fair use" under the Copyright Act. Hopefully I won't have to do another post defending that position.

Another reader suggestion I liked is that "any attempts by the monkey to exert a claim on money made by the photos would likely be barred by laws that prohibit criminals from profiting from their wrongdoing. The monkey stole the camera, after all." Applying a "Son of Sam" law to a thieving monkey is a very creative idea, but doesn't fit the facts here. The monkey didn't actually steal the camera, he just borrowed it.

Update: Techdirt has still more analysis, under UK as well as US law, and is also maintaining that the monkey's photos are in the public domain. Apparently no pushback so far from the news agency.