Gafter vs THC or The Parable of the Gradient Illusion

Some years ago I cowrote a book that included some original optical illusions. One illusion in particular became an issue of legal dispute. Some chemicals in my brain (Tetrahydrocannabinol) claimed to be ultimately responsible for the works and claimed, therefore, that my publication of the illusion was copyright infringement. As they were threatening to sue, we filed a preemptive suit for a declaration of non-infringement. The artwork can be seen on Akiyoshi Kitaoka's site labeled the "Bloch-Gafter's effect". The district court found in our favor due to the opposing party not being represented at the hearing. However, on appeal the decision was upheld on the strength of the case, and the decision is now a precedent. The ninth circuit court of appeals found that a copyrightable work produced as a result of the influence of chemicals in a person's brain and body are to be treated as a work made for hire, as it is "a work prepared by an employee within the scope of his or her employment", under the principles outlined by the Supreme Court:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; ...

We were awarded costs but, alas, have so far been unable to collect.

The upshot of this legal decision is that a person can be treated as the author of works produced by that person, even though the responsibility for producing the work is shared among parts of the person's body not under their direct supervision.

This settles a question raised on A recent Free Will, Science, and Religion Podcast : can a person reasonably claim authorship of decisions when those decisions are a result of processes in their body (such as chemical reactions) not fully under their control? The answer, it turns out, is yes.

Case closed.

Dear Supreme Court: Please don't allow APIs to be copyrightable!

A few days ago the EFF filed an Amicus Brief with the US Supreme Court urging it to review a horrible appellate court decision finding that APIs are copyrightable.


If you care about the health of the software industry or about the freedom of open-source developers to provide independently developed implementations that are functionally equivalent to existing APIs, then you are probably aware of this case and its implications. The deep morass that exists due to software patents is about to get much worse unless this decision is reversed.