Strange Copyright Questions – Who/What Can Hold Copyright?

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Copyright law may not come across as the most exhilarating topic (although searching for old copyright registrations is more exciting than you’d think), but many copyright cases make pretty bizarre headlines. Read about the infringement claim that J.K. Rowling stole the word “muggle” or the copyright dispute over the Mike Tyson-style tattoo in The Hangover Part II, and you’ll begin to unearth some outlandish questions raised by copyright cases.

One of the copyright issues I find most interesting is the basic question of who/what can hold copyright for works they’ve created.  Of course an adult human can hold copyright, but can children hold copyright?  How does copyright law apply to works created by animals, or even art created by artificial intelligence?

Can children hold copyright?

Short answer, according to Copyright.gov: Yes in the US.

Minors may claim copyright, and the Copyright Office issues registrations to minors, but state laws may regulate the business dealings involving copyrights owned by minors. For information on relevant state laws, consult an attorney.

Kristin Keller at Noodle.com describes potential copyright issues that may arise at schools “when schools have the potential to profit from student-produced work, when schools prohibit students from profiting from their own work, or when the rights of other students may be infringed upon when student work is reproduced.”

Can animals hold copyright?

Now we start to get into weirder territory about whether non-humans can hold copyright.  The most well-known case about animal copyright ownership is probably the monkey selfie case filed by People for the Ethical Treatment of Animals (PETA) back in 2015, where “Judge William H. Orrick dismissed the claim on the grounds that the Copyright Act does not authorize vesting copyright ownership in nonhumans.”  PETA appealed the ruling but later dropped the appeal after a settlement with the human photographer who had originally posted the monkey selfie.

The Copyright Office clarified in September 2017 that it will “not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office
may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.”

So in short, it seems like animals can’t hold copyrights in the US.  (Neither can ghosts.)

Can artificial intelligence hold copyright?

WIPO Magazine recently published a fascinating article by Andres Guadamuz, examining how copyright law may apply to artistic works created by artificial intelligence.  Guadamuz explains:

There are two ways in which copyright law can deal with works where human interaction is minimal or non-existent. It can either deny copyright protection for works that have been generated by a computer or it can attribute authorship of such works to the creator of the program.

It seems, at least for now (until the robot uprising occurs) that artificial intelligence can’t hold copyright.

So to sum it up:

What can currently hold copyright: Human adults and children

What can’t hold copyright: animals, plants, ghosts, robots

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The (Eventual) Digitization of Pre-1978 Copyright Records

Copyright is an incredibly important form of intellectual property in the US that protects “original works of authorship fixed in a tangible medium of expression”, ranging from artwork and novels to computer software and architecture.  Copyright can also be an enormous pain to search, especially if you’re looking for pre-1978 copyright registrations. You very well may need to search for pre-1978 copyright registrations, since works originally copyrighted after 1922 and renewed before 1978 “have been automatically extended to last for a total term of 95 years” (learn more about copyright duration here).  Basically, a work published in 1923 could still have an active copyright today.

If you’re searching for a post-1978 copyright registration, you can check the online Copyright Catalog.  The search interface doesn’t have a lot of bells and whistles, but you can at least search by keyword, title, claimant, organization, etc. and quickly browse through lists of results.

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Searching the online Copyright Catalog for Disney’s Moana.

You don’t have nearly as much luck if you need to search pre-1978 registrations.  Here are the options that I’m aware of:

  • Search the copyright card catalog (which contains approximately 45 million cards covering 1870 through 1977) onsite in the Copyright Public Records Reading Room at the Library of Congress. If you don’t live near Washington DC, this may be tricky.
  • Try browsing digitized versions of the Catalog of Copyright Entries (CCE).  The University of Pennsylvania has an excellent guide on locating digitized historic registration records. The Internet Archive has a collection of digitized Catalogs of Copyright Entries from July 1891 through December 1977.  You can keyword search within individual volumes thanks to OCR’ed text, but I couldn’t find a way to keyword search across the text of all volumes at once. (Note: The Copyright Office states “The CCE does not contain all registration updates and does not contain entries for recorded documents, including assignments, and should not be used as the only reference.”)
Capture
Digitized Catalog of Copyright Entries on the Internet Archives.

Thankfully, the US Copyright Office is in the midst of a massive digitization project that will eventually “provide web-access to the pre-1978 Copyright registration records.”  The Project Goals page gives an update on the current status of the project:

In 2014-2015 the Copyright Office completed the digitization of pre-1978 records for preservation. The Office is now capturing pre-1978 digital content and is moving towards integrating the content and card images into the existing online record.

There’s no estimated completion date for the project, and knowing the speed at which government works, it may be a few years before we see the pre-1978 records integrated into the online Copyright Catalog.  At least the project is moving along (although it does concern me that the Project Blog link no longer works!).  Kudos to the Library of Congress and US Copyright Office for undertaking this enormous task, and hopefully the project will help librarians more easily identify copyright status of older works in the future.