By: Luis A. Velez, The IP Trend™ Blog
“A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the ‘author’ may adopt it as his and copyright it.”
An accidental effort can create an original work subject to copyright protection. According to case law, the “author” can adopt an unintentional variation. Can we consider the mere fact that a photographer unintentionally gave the camera to an animal as effort? If an animal takes a picture, who can file for copyrights of the picture? According to The Guardian, the United States Copyright Office (hereinafter “USCO”) said: “The Office 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 states that the work was inspired by a divine spirit.”
We know an animal, by itself, can’t file its work in the USCO. But overall, if the photographer owns the camera (i.e. the tangible medium of expression), should he be awarded at least with the exclusive right of reproduction? We know the photographer owns the camera, but is he the author of the picture according to the current U.S. standard?
The originality test consists of “something more than a merely trivial variation, something recognizably his own.” “The originality requirement for copyright protection is not particularly rigorous.” The standard of originality that the courts of the United States hold today demands the author’s independent conception and a low quantum of creativeness that he or she employed in his or her work. “A work is original if it is the independent creation of its author. A work is creative if it embodies some modest amount of intellectual labor.” Thus, creativity is deeply rooted to the originality concept and an author needs to invest some intellectual effort to create a work independently. Courts have developed a two-prong test: independent effort and a modicum of creativity (however, there is not an exact description of how an author could attain the independent effort and the amount of creativity required). Furthermore, the USCO and/or courts freely decide an author’s effort.
Now, I suggest we read again the first paragraph of this article and ask: what if the photographer intended to take the picture but the animal unintentionally took it, should the author adopt the animal’s unintentional effort as his own? According to the low modicum of creativity and the minimum independent effort required, should we consider the author’s efforts of owning the camera, traveling to the area and/or having the camera prepared to take the pictures of the monkey?
Don’t get me wrong, I concur with the Copyright Office! But the U.S. Judicial System needs to clarify and redefine the originality concept for copyrights. It needs to be more descriptive and stringent. The current “low modicum of creativity and independent effort” standard continues to open the door for confusion and debate.
 See Alfred Bell & Co. v. Catalda Fine Arts, Inc.,191 F.2d 99 (2d Cir. 1951).
 Samuel Gibbs, Monkey business: macaque selfie can’t be copyrighted, say US and UK, The Guardian, http://www.theguardian.com/technology/2014/aug/22/monkey-business-macaque-selfie-cant-be-copyrighted-say-us-and-uk.
 See L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir. 1976). See also Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 103 (2d Cir. 1951).
 Greenspan v. Random House, Inc, 859 F. Supp. 2d 206, 216 (D. Mass. 2012).
 See Craig Joyce, Marshall Leaffer, Peter Jaszi & Tyler Ochoa, Copyright Law, 82 (LexisNexis, 8th ed. 2010).
 See Durham Indus., Inc. v. Tomy Corp, 630 F.2d 905, 911 (2d Cir. 1980) citing Batlin, 536 F.2d at 490. Accord, Donald v. Zack Meyer’s T.V. Sales and Service, 426 F.2d 1027, 1029-30 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 441 (1971). See also Batlin, 536 F.2d at 490, citing Herbert Rosenthal Jewelry Corp. v. Grossbardt, 436 F.2d 315, 316 (2d Cir. 1970); see Puddu v. Buonamici Statuary, Inc., 450 F.2d 401, 402 (2d Cir. 1971) (discussing the quantitative test of originality characterized as “modest”, “minimal”, and as establishing “low threshold.”).
 See Batlin, 536 F.2d at 490. See Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d Cir. 1951); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), aff’d, 309 U.S. 390 (1940), 60 S.Ct. 681, 84 L.Ed. 825 (1940).