Earlier this month I wrote here that it would be very difficult to argue that a monkey could create a copyrightable work. Seems I was right.
The US Copyright Office just released a draft of its compendium of office practices. Although not official until this December, The Compendium of US Copyright Office Practices, Third Edition, (“Compendium”) now clearly states that the US 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 US 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 US Copyright Office. And under US 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.