The Authorial Ape

A nature photographer named David Slater left a camera unattended, and macaque monkeys tripped the shutter.  The resulting photographs are undoubtedly copyrightable works of authorship, but who owns the copyrights?

Techdirt reported on the question a few days ago and included copies of some of the photos in its post.

For its trouble, Techdirt received a request to take the photos down from an agency that represents David Slater, which made no claim that Slater owns the copyright – only that Techdirt does not.

There is no time for a long, reasoned analysis, only for some questions and some possible, imperfect parallels to problems of works created by non-humans:

If a human trains or teaches an animal to “create” (say, a human “teaches” an elephant to paint), then the animal might logically be considered the instrumentality of the human, and the human would own the copyright in the animal’s work.  That logic seems to assume that animals are passive conduits for human demands.  Are animals capable of “creativity” or “originality” as copyright law uses those concepts?  If so, does that undermine the “instrumentality” theory?

What about works created by so-called “intelligent” (computer) systems?  By definition, these possess the capacity for producing works that are not the outcomes of automated, linear processes.

What about works alleged to have been created by deities, where the human is arguably the passive instrument?  Some courts have recognized valid copyrights owned by human “translators” of deity-produced works.

If the human owns the animal, then are the works produced by the animal the “offspring” or “children” of the animal, and owned by the human under a cousin of the idea of accession?  The work-as-child theory seems dubious to me even in the context of human authorship; it likely fares no better here.  I suspect that an economic analysis of the question could be produced that would justify an accession principle here.

In the case of David Caters, looking at the photos (posted at Techdirt), it appears that he does not own the animals (thus taking the accession possibility of the table), that he did not train or teach the monkeys to shoot photos, and that the monkeys are capable of at least the modicum of originality and/or creativity required by the Feist case.   So, it seems to me that Caters himself has no claim, and the agency that corresponded with Techdirt has no claim to press on Caters’ behalf.

(Updated:  It turns out that my friend and colleague David Post beat me to this topic by a day.  See his post at Volokh.com here.)