Monkey See Monkey Do: Copyright Protection and Animal Authorship
Written by: Loree Varella
On August 19, 2014 the Copyright Office published a compendium updating copyright practices and regulations. One area of revision was the “Human Authorship Provision,” which states that “[t]he Office will not register works produced by nature, animals, or plants,” nor any “work purportedly created by divine or supernatural beings.” Examples of material ineligible for protection were provided, which included a “photograph taken by a monkey.”
This particular addition was created in response to an ongoing copyright battle between nature photographer David Slater, and the Wikimedia Foundation. On a trip to an Indonesian forest in 2011, Slater encountered a troupe of crested black macaques. One of the monkeys seized his camera, began taking pictures, and captured a striking self-portrait. The picture quickly grew viral on the internet, and was procured by the Wikimedia Foundation, a collection of free-to-use images in the public domain. Slater demanded that the picture be taken down, claiming that he was the copyright holder of the image and that he was losing thousands of dollars due to it being in the public domain.8 Wikimedia refused to comply; traditionally, authorship is awarded to the photographer, as long as “a sufficient amount of creative expression” is present. If the creative expression happens to come from a member of a different species, that creation is ineligible for protection.
Rather than creating clarity, the additional examples of unprotected work provided by the Copyright Office could potentially result in an increase of cases highlighting the complexities between animals and authorship. Advances in technology are enabling humans to discover previously opaque facets of animal behavior, thought-process, and creativity. The GoPro camera, a sophisticated light-weight model, has been inadvertently utilized by animals to tape footage of their everyday lives— footage that might otherwise be difficult or impossible for a human to obtain. Sound recorders with enhanced precision allow scientists to study the improvisational mechanics of birdsong, and determine if the songs may serve as an aesthetic outlet.11 Since studies conducted during the late 1950s, zoos from across the globe have recognized the benefits of creativity in animals’ social, emotional, and intellectual enrichment, and incorporate art supplies in their exhibits. The creation of art may no longer be a characteristic unique to humanity.
Understanding often leads to appreciation, and new insights into the minds and lives of animals have been reflected by increases in public demand for work created by animals. In the 1950s, the chimpanzee Congo was featured in TV appearances and subsequent art shows for his paintings, some of which have sold for more than $25,620. Since then, animal-themed art exhibits have sprung up in lofty arenas of science and art, such as London’s Grant Museum of Zoology and the MoMA, which often raise money for zoos and research. However, as the animal arts movement grows, advertisers and marketers are taking notice, especially if popular pieces are freely obtainable through the public domain. The questions of what constitutes art and authorship, and the rationale for who deserves protection for their work, cannot be easily answered. But broad strokes and outright dismissals of animal authorship could potentially allow society at large to be enriched at the expense of artists without voices.
 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 101 (3d ed. 2014).
 James Eng, Monkey Selfie Can’t Be Copyrighted, U.S. Regulators Confirm, NBC News (Aug. 21, 2014, 5:47 PM), http://www.nbcnews.com/tech/social-media/monkey-selfie-cant-be-copyrighted-u-s-regulators-confirm-n186296.
 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 1112.2 (3d ed. 2014).
 60 Minutes: “Stoked” CEO sets the tone at GoPro offices (CBS television broadcast Nov. 9, 2014, 9:55pm), available at http://www.cbsnews.com/videos/stoked-ceo-sets-the-tone-at-gopro-offices/. See also Gianna Toboni, Seagull With Camera: The Viral Video that Kept Everyone Guessing (ABC television broadcast July 5, 2011), available at http://abcnews.go.com/Technology/gopro-seagull-video-real/story?id=13942989 (in one popular video, a seagull snatches a GoPro camera and flies off while it’s still recording, giving viewers a “birds-eye-view” of its daily life).
 Gisela Kaplan & Lesley J. Rogers, Elephants That Paint, Birds That Make Music: Do Animals Have an Aesthetic Sense?, The Dana Foundation (Oct. 1, 2006), http://www.dana.org/Cerebrum/2006/Elephants_That_Paint,_Birds_That_Make_Music/.
 Robin Cembalest, Birds do it, Bees do it: Taking Animals’ Art Skills Seriously, ARTnews (Mar. 28, 2013), http://www.artnews.com/2013/03/28/animals-making-art/.
 Lloyd Vries, Dead Chimp’s Art Sells Big, CBS News (June 20, 2005, 12:58 PM), http://www.cbsnews.com/news/dead-chimps-art-sells-big/.
 Cembalest, supra note 12.