Tuesday, December 5, 2023

PETA Continues to Argue Monkeys Can Create a Copyrighted Work

Macaca_nigra_self-portraitI think by now this story needs no introduction. But in case you’ve been frieze dried or doing hard time, here’s the background on PETA’s lawsuit — on behalf of a monkey — against a human photographer.

On December 4th, PETA, represented in part by the IP powerhouse law firm of Irell & Manella, filed its opposition to photographer David Slater’s motion to dismiss. Here’s Techdirt’s take, albeit a bit emotional and frantic, against the possibility of a monkey being able to create a copyrighted work.

I have to give this a bit more thought, but although PETA’s claim that “every copyright must have an author” is certainly true (since authorship is one requirement of copyrightability), I’m not so sure that’s the issue here. I think the real issue here, and one that I do hope is parceled out through litigation, is whether animals, lacking certain human characteristics that we humans have denied them–particularly that of conscious “intent”– can intend to create a copyrightable work. But is intent really necessary? If I inadvertently take an extremely interesting photo with my i-Phone, no copyright lawyer or scholar in their right mind would argue that I didn’t create a copyrightable work.

But, what if a strong wind, or a hurricane, arranges an interesting form with my backyard furniture, so much so that I want to claim it as a sculptural work? Does that arrangement, which if created by a human being would normally garner copyright protection, obtain copyrightability assigned to mother nature, or God? Perhaps this lawsuit is not so much about copyright or photography as much as it is about eradicating the idea that animals and humans are different, because if animals and humans are pretty much alike, then our settled understanding of what we can do with animals will certainly be revolutionized.

As the Irell lawyers point out, Melville Nimmer, the eminent copyright scholar, once proposed that we would eventually have to grapple with the question of whether artificially intelligent computers could produce copyrightable works. I think the time is here.


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