Can a Non-human be Considered an Author Under the Copyright Act? Monkey Selfies and Computer-Generated Poetry

The U.S. District Court for the Northern District of California decided that only humans can be Authors under the Copyright Act, at least for now.

In Naruto v. Slater, 15-cv-04324-WHO (January 28, 2016), a crested macaque named Naruto took photographs of himself (the “Selfies”) using photographer David John Slater's camera. Id. at 1. Next Friends (PETA and Antje Engelhardt) filed a complaint on behalf of Naruto in 2015, alleging that Slater, Blurb, Inc. (who published a book by Slater containing the Selfies), and Wildlife Personalities (a UK company that also claimed authorship of the Selfies) violated Naruto’s copyrights by reproducing and selling the photographs for profit. Id.

The decision boiled down to one of statutory standing, which is a question of the type of plaintiff that can sue under a particular statute. In this case, the court looked to the Copyright Act to determine whether it specifically grants animals the right to sue for infringement.

On a motion to dismiss, the court ruled that because the Copyright Act does not confer standing upon animals, Naruto does not have standing to state a claim under the Copyright Act, even though the court highlighted Naruto’s intelligence and that the Selfie was taken by Naruto's “ ‘independent, autonomous action’ in examining and manipulating Slater’s unattended camera and ‘purposely pushing’ the shutter release multiple times, ‘understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.’ ” Id.

The court discussed that the Copyright Act protects original works of authorship fixed in any tangible medium of expression (17 U.S.C. § 102(a)), and that the fixing must be done “by or under the authority of the author.” 17 U.S.C. § 101. The court stated that the Copyright Act does not define “works of authorship” or “author”, therefore it must look to the language of the Copyright Act to determine whether Congress intended to confer standing upon particular plaintiffs, in this case animals.

To decide this issue of statutory standing, the court chose to follow the standing rationale laid out in Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004). In Cetacean, the self-appointed attorney for the Cetacean Community (whales, dolphins, and porpoises) filed suit on behalf of the Cetaceans for violations under the Endangered Species Act, the Marine Mammal Protection Act, and the National Environmental Policy Act. The court looked at the language of each statute to see whether Congress intended to confer standing to animals. Id. at 3. It found no evidence that Congress intended to confer standing to animals under those Acts. Id. Applying Cetacean to the present case, the court concluded that, “if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.” Id.; citing Cetacean at 1179. Furthermore, the decision stated that there is no reference to animals in the Copyright Act, and the Supreme Court and Ninth Circuit “have repeatedly referred to ‘persons’ or ‘human beings’ when analyzing authorship under the Act.” Id. at 3.

To further drive the point home, the court asserted that its opinion was in line with the Copyright Office, to which courts typically give deference when interpreting the Copyright Act. The Compendium of U.S. Copyright Office Practices, issued by the Copyright Office in December 2014, directly addressed the issue of human authorship. In Section 306 of the Compendium, “The Human Authorship Requirement”, the Copyright Office declares it “will register an original work of authorship, provided that the work was created by a human being.” Id. at 4; citing Compendium at § 306. In the section of the Compendium entitled, “Works That Lack Human Authorship,” it states that, “[t]o qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.” Id.; citing Compendium at § 313.2. The same applies to “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Id.

For the foregoing reasons, the court found that Naruto is not an author for the purposes of the Copyright Act, and thus had no statutory standing to sue for infringement. Id. at 4.

But what about computers? In a 2015 Ted Talk, “Can a computer write poetry” writer Oscar Schwartz revealed how an algorithm can generate poetry capable of fooling people into thinking it was written by an actual human. He applied a test for intelligence (the Turing Test) that says, “if a computer can fool a human 30% of the time, then it was a human and passes the Turing test for intelligence.” Schwartz said he has computer-generated poems that fooled 65% of humans in a study he conducted online.

However, the same reasoning in Naruto likely applies to computers as well. Although computers are capable of producing creative, independent works (I.e. Artificial Intelligence), they cannot (for now), “perform several tasks that a copyright holder must perform to be eligible for protection” such as statutory standing to sue an alleged infringer. See Darin Glasser, Copyrights in Computer-Generated Works: Whom, If Anyone, Do We Reward?, Duke L. & Tech. Rev., July 11 2001, at 24, 31.

Written By: Matthew Trejo

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