Intellectual Property Law
New Matter WINTER 2016, Volume 41, Number 4
Content
- 2017 New Matter Author Submission Guidelines
- A New Federal Action Transforms Trade Secrets Litigation
- Case Comments
- Contents
- Federal Circuit Report
- Intellectual Property Section Executive Committee 2016-2017
- Intellectual Property Section Interest Group Representatives 2016-2017
- International Ip Developments
- Ip and Art: An International Perspective
- Letter from the Chair
- Letter from the Editor-in-Chief
- MCLE Self-Study Article
- Online Cle For Participatory Credit
- The Licensing Corner
- The Mogol v. Battisti Copyright Case
- The State Bar of California Intellectual Property Alumni
- Ttab Decisions and Developments
- Copyright Commentary
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.