[We proudly offer a guest post co-authored [ha! you’ll realize that was hilarious once you read through the post] by our esteemed colleagues Aaron M. Milrad (J.D., B.A., Counsel at Dentons Canada LLP), and Christian R. Orton (J.D., M.A., Associate at Dentons Canada LLP). This post reflects the intellectual curiosity of the authors and does not constitute legal advice.]
The monkey is back!
The dispute between Wikipedia and the British photographer David Slater recently reported in various news outlets is not new. It is actually the continuation of a dispute that began in July 2011 between the UK based Caters News Agency, who had hired Slater to do a nature shoot in Indonesia, and the blog Techdirt.
According to reports at that time, the monkey picked up Slater’s camera while unattended and snapped a number of images while it looked at its own image in the lens. Slater later discovered the images and submitted them to the Daily Mail to be published – giving credit to Caters. Soon after, the question was raised whether Caters was capable of claiming copyright as Slater had reportedly acknowledged that he was not involved in creating the images. The photographs were reproduced on the Techdirt blog which commented on the issue. Caters subsequently requested that the blog remove them for violation of copyright. It declined and the debate commenced.
Techdirt considered Caters’ capacity to claim copyright under the various copyright legislation of the U.S., U.K. and Indonesia arriving at the conclusion that regardless of the regime only a photograph created by a human is capable of receiving copyright. So what about in Canada?
Copyright is accommodated in Canada through the Copyright Act, providing both economic rights to control the reproduction of a creative work and the profit generated from it, as well as ‘moral rights’ associated with the work. In order for something to have copyright protection it must: be original, correspond to one of the four prescribed categories of works (literary, dramatic, musical and artistic), and be created by an author. Usually, the author will be the first owner of the copyright, which can then be sold or licensed according to the author’s interests (except for the moral rights which cannot be sold but can be waived).
Authorship refers to the person responsible for original expression embodied in a work, and not necessarily the creator of it. It is recognized that in various media the creative force behind a work is not necessarily the person who writes, executes or fabricates it. An architect, for example, retains rights in a building despite the fact that an independent contractor built it. In complex creations such as films, there are various layers of authorship present. The director will generally have authorship of the film, but the set designer will retain authorship rights to the set and so on. Finally, in certain circumstances there can be multiple authors for a single work. In such a collaborative work, the creators will be co-authors provided that their contributions are not distinguishable and separable.
Though the Copyright Act does not provide a definition of ‘author’, it does state that an author must be a citizen or a person who is resident in a country that is part of the international regime of copyright protection. This implies that there can be no copyright without the author being human, and Canadian courts have agreed with this interpretation.
As the law appears to only contemplate human authors, it follows that an animal cannot be an author. It also follows that a work created by an animal cannot receive copyright protection unless it can be argued that the work is really created by a human, such as the animal’s owner. The photography of Cooper ‘the-photographer-cat,’ whose pictures became an online sensation a few years ago for their unique depictions of feline encounters, illustrate this point of law. In fact Cooper was neither selecting the images or operating the camera. His owners had fastened a camera to Cooper’s collar and arranged for the camera to record a new image at two minute intervals as Cooper wandered randomly through his environment.
The final consideration in establishing if there can be copyright in animal created images is whether there was sufficient originality involved in their creation. The Act does not define what constitutes ‘originality’ so the task fell to the Supreme Court of Canada, which determined that originality must comprise of the exercise of skill and judgment that is not so mechanical as to be trivial. In the context of photography this has been interpreted as considering the personal efforts of the photographer with regard to the choice, layout and posture of the subject, and the selection of camera angle and lighting.
If a picture taken of a passing scene with a cell-phone camera is worthy of copyright, certainly the images produced as a result of the unique camera configuration devised by the owner of Cooper the-photographer-cat would equally well be worthy of copyright. But how is copyright to be assigned in the case of the curious macaque monkey? A copyright decision would probably be dependent on consideration of the actual events prior to the monkey operating the camera. Two scenarios are plausible. If Slater had set the camera up on a tripod and deliberately selected the camera angle before the monkey began playing with it and pressed the button, it might be argued that Slater was the author by devising a situation where a work would be created and that the images were sufficiently original as a result. However, if the camera was merely laid down for a few minutes before the monkey’s curiosity led it to pick up the camera and accidentally take the images as a result of playing with the camera, it would be difficult to argue either that Slater was the author or that the images possess sufficient originality. In the second scenario the image would presumably be without copyright.
The question remains; what decision is to be made when there is a convincing argument that the human is not the author? Animal art is not a new phenomenon, and has had a market at least since the late-1950s when a chimpanzee named Congo was encouraged by zoologist and anthropologist, Desmond Morris, to paint. Congo went on to create more than 400 drawings and paintings demonstrating an exceptional degree of creative independence—he was very much in control of his work and would only stop working when he was satisfied that it was complete. Congo’s creations were by no means value-less artworks. In fact, in 2005 three of Congo’s paintings sold for £14,400 through a reputable British auction house. This was a price considered to be nearly 20 times their estimated value. As an interesting aside; on that same day works by Andy Warhol and Renoir attracted so little interest that they were withdrawn from the auction.
Another example is the work of Tillamook Cheddar, a Jack Russell terrier residing in Brooklyn, New York, who has gained considerable notoriety as an abstract expressionist. As one of the more successful animal artists in the world, her work has been shown in more than fifteen solo exhibits, and her pieces have sold for hundreds, sometimes thousands of dollars to collectors across America and Europe.
In other contexts, animal art has been used to raise money for charitable causes. A prominent example of this is the Asian Elephant Art & Conservation Project conceived of by conceptual artists, Komar and Melamid. Started in 1998 at the Thai Elephant Conservation Center in Lampang, Thailand, this is a non-profit organization that trains elephants to make marketable paintings, the profits of which are used for various habitat conservation and animal awareness projects. Not all elephants are successful artists, and after a week of training only those with aptitude are encouraged to continue.
Evidently, the animal art market is not economically insignificant. Animal works are sold by the same business models as artworks created by humans, and appear to increase and decrease in value in response to market demand in a similar way. However, because they are not created by human authors, they are not protected by copyright legislation. Instead, the sellers or ultimate owners of the artworks tend to employ contracts to impose specific restrictions on the use and reproduction of the artwork that are congruous to copyright protection. However, any violation of the agreement would not be subject to the remedies offered by the Copyright Act, and would have to be resolved as any other contract would—potentially a more expensive and time consuming process.
In light of the apparent economic impact of animal art, the question might be asked whether copyright law should be expanded to include works created by animal authors, and if so how?
Part of the requirement for originality discussed by the Supreme Court is that the exercise of skill and judgment must not be so trivial that it could be characterized as a purely mechanical exercise. It must necessarily involve intellectual effort, where the policy behind copyright protection is to protect the unique expression of an idea in producing an original work. The question then arises whether animals are capable of having ideas and their creations are expressions of those ideas, or whether they are simply behaving as trained?
Indeed the very protections offered by the Copyright Act cast doubt on whether animals could ever be capable of authorship. If an animal were to be an author within the scope of the Copyright Act and become the first owner of its work, then how would it enforce its rights to exclusive reproduction in the face of infringement when it cannot gain standing as a competent plaintiff in court? Furthermore, unlike the economic benefits associated with copyright, moral rights are attributed to the intrinsic expression of the copyrighted work to protect its integrity and are inalienable from the author. How would an animal express moral indignation at its work being trivialized or mutilated or reproduced without proper attribution? Finally, what would the effect be on the various rights that accompany copyright known as ‘related rights’? Would circus animals, race horses and show dogs be granted corresponding performers rights?
The idea of making the animal a bearer of copyrights would appear to be a counterproductive exercise that would pose the threat of opening a Pandora’s box of legal inconsistencies. However, while statutory reform for the sake of animal rights may strike some as bananas, the suggestion of expanding copyright protection to works created by non-human actors has received attention with regard to robots, referred to as ‘intelligent agents’, that employ artificial intelligence to create work products. An example of this might be an online news aggregation software that learns, adapts and develops as it acquires more information producing unique and truly original works. While this technology is in its infancy, it is expected to grow into a lucrative industry, and the desire to exploit the commercial value of the works created through copyright is significant.
Various solutions have been advanced that would allow for copyright to fall to the right place but nothing has been done yet to change the law accordingly. Indeed considering that the last reforms to the Copyright Act were surrounded by controversy, it may be a while before the federal government is willing to venture down that road again. Perhaps when the economic impact of intelligent agent technology is sufficient to warrant further revisions to copyright law, it may be possible to advocate for the extension of copyright protection to animal created works. But, for now, any discussion of the animal auteur is strictly for the birds.