Intellectual Property Law

New Matter WINTER 2016, Volume 41, Number 4

Copyright Commentary

WILLIAM J. O’BRIEN One LLP

MONKEYING WITH COPYRIGHT? ? APPLYING THE "CREATIVE SPARK" REQUIREMENT TO CREATIONS OF NON-HUMAN "AUTHORS"

IT HAS BEEN SAID (although it is not clear who said it1) that an infinite number of monkeys, equipped with typewriters, would eventually recreate the entire works of Shakespeare. Assuming this to be true,2 the pressing question for intellectual property lawyers is, who would own the copyright? Or, indeed, can there be a copyright absent a human author?3

Surprisingly, the question of copyrights in works created by monkeys is more than merely fodder for moot-court hypotheticals. The question is now at issue in a real lawsuit, which is awaiting oral argument before the Ninth Circuit.4 Although that particular case may be destined for a quick demise on a relatedly narrow ground, the issues that it raises about the connection between creativity and copyright eligibility are likely to become more important and more prevalent as the automated creation of images, sounds, and texts expands and proliferates.

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