In a case that has captured the public’s attention and lawyers’ imagination, the Ninth Circuit ruled that a monkey cannot own a copyright (opinion can be read here). The case is not frankly interesting for what it is, but rather for what it could have been, and the legal ramifications of non-humans owning a copyright.
We know that non-humans can, in limited circumstances, own a copyright; we see it in the work-for- hire doctrine where the employer is a corporate entity. But corporations, while not human, are run by humans, and a human created the work owned by the corporation.
Naruto was a seven year old Indonesian rested macaque monkey who grabbed the camera of an unwitting photographer and took a number of selfies while bearing an infectiously wide grin. The pictures are striking and amusing for a wide variety of reasons, not the least of which is their reflection of our own vanity and cultural obsession over selfies and self-promotion – a vice prevalent in the animal kingdom, apparently.
The photographer, upon discovering them, presumably thought so as well and included them in a self-published book. PETA, however, did not like it, and decided to sue the photographer as a “next friend” of Naruto (i.e. on Naruto’s behalf) for copyright infringement. Coalition of Clergy v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002) (“[i]n order to establish next-friend standing, the putative next friend mush show: (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner”).
Last week, in a scathing and lengthy opinion, the Ninth Circuit ruled against PETA. Not only did the Court find that PETA could not have “next friend” status because Naruto is an animal, but it also found that Naruto lacked statutory standing under the Copyright Act because it is, an animal.
On both issues, the Court relied upon Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Circuit), where the Ninth Circuit crafted a simple rule of statutory interpretation: if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. Since the Copyright Act does not expressly grant such standing, there is no such standing.
The ruling is unremarkable, but the debate preceding and surrounding the Court’s decision is remarkable. Indeed, there are an increasing number of creative works that are created, not by animals, but rather robots. Artificial intelligence (AI) is being driven at the highest corporate levels, and can, and already has, resulted in significant artistic creations.
A panel at the 2017 World Economic Forum in Davos, Switzerland, focused on AI as a disruptive technology that will drive productivity as it continues to make its way into enterprise systems and computing platforms. According to Forbes, the AI market will grow from $8 billion in 2016 to more than $47 billion in 2020. Market adoption is predicted to grow to 62 percent by 2018.
AI has pragmatic, immediate, and very real, implications for authorship. Google started funding an AI program by the Press Association that will write local news articles. In 2016, a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt, a new artwork generated by a computer that had analyzed thousands of works by the 17th century artist. A short novel written by a Japanese computer program in 2016 reached the second round of a national literary prize.
Creating works using AI could have very important implications for copyright laws. In the United States, the Copyright Office has declared that it will “register an original work of authorship, provided that the work was created by a human being.” This stance flows from established case law (e.g. Feist Publications v. Rural Telephone Service Company, Inc., 499 U.S. 340 (1991)) which specifies that copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.”
If AI creates a work, such as a painting or novel, does it not deserve the same level of protection as if created by a human? Query whether funding in AI can be impacted by the current statutory framework which does not grant such protection. Indeed, it could result in a chilling effect on investment in automated systems, as any incentives to do so could be reduced due to lack of protection.
These are interesting questions raised by the issues in the Naruto case, and that will certainly continue to be debated in the future. For now, we know that there is no copyright protection, but the question is whether this will change as our markets recognize the value of such creations.