Tuesday, September 2, 2014

U.S. Copyright Office Not One to Monkey Around

The infamous Macaca Nigra selfie (via Wikimedia)

The infamous Macaca Nigra selfie (via Wikimedia)

Earlier this month I wrote in Hyperallergic that it would be very difficult to argue that a monkey could create a copyrightable work. Seems I was right.

The U.S. Copyright Office just released a draft of its compendium of office practices. Although not official until this December, The Compendium of U.S. Copyright Office Practices, Third Edition, (“Compendium”) now clearly states that the U.S. Copyright office will register an original work of authorship (e.g.- a photograph) “provided that the work was created by a human being.” The Compendium goes on to add, “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’” (Apparently the Copyright Office hasn’t watched Planet of the Apes.)

“Because copyright law is limited to ‘original intellectual conceptions of the author,’ the [Copyright] Office will refuse to register a claim if it determines that a human being did not create the work.” The Copyright Office “will not register works produced by nature, animals, or plants,” nor purportedly created by a divine or supernatural being. As one example of an unauthored and thus unregistrable work, the Compendium lists “a photograph taken by a monkey.”

So not only is the U.S. Copyright office saying that an animal cannot author a copyrightable work, they are also saying that that particular work, no matter how cute or creative it may seem, cannot be registered with the U.S. Copyright Office. And under U.S. law, without that copyright registration a copyright lawsuit is untenable.

One last thing to note. Although the Compendium is an administrative manual meant to provide instruction and guidance to its staff, attorneys, scholars, and the courts, it does not have the force and effect of law. However, it does have persuasive power, and the Supreme Court has said that as such, it is perfectly acceptable in a court of law.


Man Charged With Second-Degree Felony for Vandalizing Banksy Graffiti

In Park City, Utah, “Third District Court Judge Todd Shaughnessy this week issued a warrant for David William Noll after he failed to appear for a court hearing. Mr. Noll was charged with one count of criminal mischief after he allegedly vandalized two Banksy murals along the city’s main street on New Year’s Eve. Police say they have plenty of evidence: videos posted on YouTube of Mr. Noll painting over Banksy’s work.”


NYPD Probes German Artists in Flag Swapping Stunt

The New York Police Department is investigating claims by a pair of German artists that they replaced American flags on the Brooklyn Bridge with all-white ones last month.


Judge Says Rauschenberg Foundation Trustees Earned Their Keep

$24 million for expanding the Foundation’s value, and Rauschenberg’s son said he would have been fine with $60 million. So what’s the problem?


Street Artists Sue Terry Gilliam for Copyright Infringement

More via Hyperallergic.


Artist Pleads Guilty In Ai Weiwei Vase-Smashing


Remember Maximo Caminero, the Florida artist that walked into the Perez Art Museum Miami and proceeded to smash a sculptural vase by artist, Ai Weiwei? He just pleaded guilty to a criminal mischief charge.

According to the AP, Caminero “agreed to 18 months’ probation, payment of $10,000 restitution to an insurance company for the destroyed vase and 100 hours of community service at local art programs.” He also issued a letter of apology stating that his initial protest was wrong. Interesting.

I wrote a brief essay, Damage Inc., about this situation for the latest issue of Art Asia Pacific.


Should Funding Public Art Be Mandatory?

Pittsburgh is struggling with this question.


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