Over Easy: The Monkey Selfie
There’s a controversy brewing over a photo that made the rounds in 2011, one of several photos taken by a Macaque nigra (crested black Macaque) monkey. David Slater, an award-winning nature photographer, was in a national park in Indonesia, and left his camera unattended, and apparently a Macaque monkey wandered over and took this hilarious self-portrait. There were several different photos, mostly of grass or sky, and one has gotten a lot of attention. The photographer insists that he owns the copyright to this photo because it was taken with his camera — but in most cases whoever makes the actual art owns the copyright. For example, if you hand your camera to a stranger to take your photo (we’ve probably all done that), technically that stranger holds the copyright on the photo, even though it is a picture of you taken with your camera.
Slater has said that the monkeys were playing with the shiny objects and when one pushed the shutter, they became interested in the noise and kept pressing the button. It would be hard to make a case that Slater made any creative contribution that supports holding a copyright. The monkeys — who might have the best case for copyright on these photos, if there is one, obviously have not licensed the photos.
According to laws in the U.S., and in the UK where David Slater lives, and in Indonesia, where the Macaque took the picture, the image is almost certainly in the public domain. An animal cannot hold a copyright. Under all three countries’ laws, the work must done by a person, not a monkey. Slater, however, claims that because the camera is his, it’s his copyright. Although many people think that’s what copyright law says, it really doesn’t say any such thing.
Section 503.03 of the current Compendium of Copyright Office Practices (published by The U.S. Copyright Office) is very clear:
503.03 Works not capable of supporting a copyright claim.
Claims to copyright in the following works cannot be registered in the Copyright Office:
503.03(a) Works-not originated by a human author.
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.
But now, three years later, things have gotten interesting again.
The latest is that Slater is apparently still considering legal action against Wikimedia for refusing to take down the image from Wikimedia Commons.
The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.
Mr Slater now faces an estimated £10,000 legal bill to take the matter to court.
The “monkey owned the copyright” statement is probably an error by the author of the Telegraph article linked above. The person who uploaded the photo to Wikimedia has stated that there was no copyright claim (i.e., it is in the public domain) because there was no human author.
Why is this an issue again at all? It is at least partly Wikimedia’s fault, because they just released a transparency report, which discusses the monkey photo in a case study, and refuse to take it down.
But for the laugh of the week, please read how Wikipedia’s monkey selfie ruling is a travesty for the world’s monkey artists.
The ‘monkey selfie’ in question is a diamond in the mud: a truly remarkable portrait, perfectly focused and strategically positioned to capture a mischievous yet vulnerable smile. If that macaque had an Instagram account she’d have, like, a million followers.
But she doesn’t, and the sorry state of our copyright law – as interpreted by the Copyright Office and exploited by Wikipedia – is to blame. Due to the backwards treatment of animal creators everywhere, monkey art (and monkey photography in particular) continues to languish. How is an aspiring monkey photographer supposed to make it if she can’t stop the rampant internet piracy of monkey works?