Copyright Conundrum: A monkey’s selfie

Okay, this article in the Washington Post is just too good not to mention.

As reported in 2011 by the Guardian, British photographer David Slater spent three days in an Indonesian national park following and photographing crested black macaques, a type of monkey. At some point, he set up his camera on a tripod and left it unattended for a few minutes. When he returned, he found that the macaques had taken the camera and were taking pictures with it, apparently intrigued by the sound of the shutter. As it turns out, they took some pretty good pictures, including some of themselves. That’s right – monkey selfies.

At least one of the pictures was posted on Wikimedia Commons. As Wikimedia has now disclosed, it received from Mr. Slater a “take-down notice” under the Digital Millenium Copyright Act (or DMCA). The take-down provisions of DMCA are intended to deal with some of the unique intellectual property issues created by the internet, including the issue of an online service provider (or “OSP,” such as Wikimedia) being liable for copyright infringement when infringing material is posted on the OSP’s web site. If the owner of copyrighted material (text, a photograph or other image, video or audio recording, etc.) discovers his material has been posted online, the copyright owner can send a notice to the OSP demanding that it be taken down. If the OSP complies, it will not be liable for infringement. However, the OSP is also required to notify the person who posted the material that it has been taken down, and that person has the opportunity to challenge the allegation of infringement.

In Mr. Slater’s case, Wikimedia declined to take down the photograph because it does not believe that Mr. Slater owns the copyright to the photographs. Instead, Wikimedia explained to the ABA Journal that, in its view, no one owns the copyright to the photograph — not Mr. Slater because he didn’t take the photo and not the monkey because monkeys can’t own copyrights. And that gives us a good opportunity to discuss how a copyright originates and who owns it.

Copyright protection under title 17 of the United States Code is afforded to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Examples of works of authorship include literary works; musical works (including lyrics); dramatic works; choreography; pictorial, graphic, and sculptural works; motion pictures and other videographic works; audio recordings; and architectural works. The standard for originality is low; a work is “original” if it was created independently by the author, i.e., without copying another work. In earlier years, the copyright to an original work of authorship did not exist until the work was published, but under today’s statute the copyright exists as soon as the work is created. (Once the work is published, some complicated rules dealing with the nationality of the authors and the country in which it is first published kick in, but in most cases publication does not affect the copyright under U.S. law.)

In most cases, the author of a work owns the copyright except for a couple of situations in which the work is considered a “work made for hire.” First, works created by their employees while acting within the scope of their employment are “works made for hire,” and the copyright belongs to the employer. Second, the copyright to a few types of specially ordered or commissioned work belongs to the person who commissioned the work, and not to the author, if they agree in writing that the work is to be considered as a work made for hire. Of course, the author of a work may agree to transfer the copyright to another person, and the agreement can be made even before the work exists. In that case, the copyright is essentially transferred immediately after its creation.

So what about the monkey’s selfie? Does a copyright exist, and, if so, who owns it? I’m not about to try to answer that question, but here are some possible arguments and questions to consider.

  • Certainly the photographs taken by the macaques are within the scope of what is ordinarily considered a work, and they qualify as original. In addition, they are fixed in a tangible medium of expression that satisfies the requirement for a copyright to exist. But is there an author so that they can be considered original works of authorship? It seems logical to assume that the copyright statute presumes that an author must be a human being, so perhaps there is no copyright to the pictures because they are not orginal works of authorship.
  • Why would Mr. Slater not be considered an author? It was his camera, and he created the circumstances that permitted the monkeys to take the camera and trigger the shutter. What if the pictures of the monkeys had been taken by a camera on the tripod with the shutter activated by a motion detector? If (as seems likely) that would be protected by copyright, what distinguishes it from pictures taken by the monkeys physically activating the shutter?
  • Imagine someone leaves a piece of fabric outdoors, fabric that fades in the sunlight. The fabric moves around in the wind so that sometimes it is folded over on itself, creating a pattern on the fabric as it fades. Would the person who placed the fabric outdoors would have a copyright to the pattern? If so, wouldn’t Mr. Slater be in an analogous position? Or does it matter whether the person placed the fabric outdoors, intending to create a work of original authorship, or accidentally left the fabric outdoors with no intention of creating anything?
  • What about “elephant art,” or paintings made by elephants holding paintbrushes with their trunks? It seems hard to distinguish those paintings from the monkey selfies, so as one goes, the other would likely go as well.
  • Wikimedia seems to admit that there’s a copyright, but opines that Mr. Slater doesn’t own it. I’d think that the only way a copyright can exist is if Mr. Slater is the author (because, as discussed above, I think an “author” must be human), which means he is also the copyright owner. It seems to me that Wikimedia’s stronger argument is that no copyright exists because there is no author. But that’s just me.

As I said, I’m not attempting to answer the question of the copyright of the monkey selfies or any of the other above questions, but it will be interesting to see how this gets resolved.

And about the picture at the top of this article? It’s a ring-tailed lemur, not a monkey, but it’s the best stock photo I could find, and there was no way I was going to use the actual monkey selfies because I’m not at all sure that Wikimedia is right.

[Update August 31, 2014: On August 19, the U.S. Copyright Office issued a proposed third edition of the U.S. Copyright Office Practices. Section 306 provides, “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. . . . The Copyright Office will not register works created by nature, animals, or plants.” It goes on to list several examples of works that will not be registered, including a “photograph taken by a monkey.” So at least in the tentative position of the U.S. Copyright Office, Wikimedia got this one right — the photograph is in the public domain.

And here’s what the monkey has to say about it: A Statement from the Monkey.]

Questions of the copyright to works of animal authorship are a bit outside our practice areas. But if you’re interested in copyright license agreements, please visit our web site.


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