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Over Easy: The Monkey Selfie Is Back!

Macaca nigra self-portrait (rotated and cropped)

I’m back! Remember me?

Many FDL’ers will remember my post back in August about a photographer who visited Indonesia and left his camera where a group of Macaque monkeys found it and took lots of photos, including one or two “selfies.” Award-winning nature photographer David Slater insists that because the monkey used his camera (despite the fact that he contributed nothing to the “art” of the photo) he owns the copyright to the photo.

From my August post,

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.

The issue came to a head when Wikimedia issued a transparency report, featuring among other things, the monkey selfie, and denying Slater’s demand to take it down because of copyright ownership. Basically, statements circulated at the time that Wikimedia claimed that the monkey owns the copyright. This caused quite a few comedy opportunities — and indignation that a monkey might have more of an intellectual property claim to a work of art than a human. But the claim isn’t that monkeys have IP rights — it’s that no one owns the copyright in the photo.

As of a week ago, the monkey selfie is again back in the news. Sherwin Siy from Public Knowledge wrote a blog post about the monkey selfie photo’s authorship and the things people were getting wrong in their analysis. That blog post was headed by the monkey selfie photo. So David Slater sent Sherwin Siy and Public Knowledge an ill-informed, poorly reasoned legal threat about that post. Not only do the claims in David Slater’s letter misrepresent the law, but they misrepresent Siy’s post and the use of the image in it.

One misrepresentation in the letter, for example,

A public domain image is one in which a living author has voluntarily relinquished rights to the image. [Not true] Any debate claiming acts of nature were resonsible (sic) for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain. [Not true]

Sherwin Siy counters,

The fact that certain works have no copyright holder (because the term of copyright has expired, because the work is not the creation of a human author, or because the work was not sufficiently fixed or sufficiently creative) means that there would be no one to definitively contest the usage in court.

Some people insist that if the monkey can’t own the copyright, the photographer must, because someone has to own the copyright in the photo.

But that simply isn’t true. Sherwin Siy concludes,

But the larger point is this: we need to stop assuming that every image, sound recording, or innovation is owned, or even ownable. There are things that do not belong to anyone—they can be used by all. As easy as it is to get a copyright (and it shouldn’t be too hard), copyright protection is not the default state of the world. The public domain is.

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I retired from the University of Notre Dame in the Office of Information Technology in 2010. I'm divorced, with two grown children and 8 grandchildren. I'm a lifelong liberal and a "nonbeliever."