In 2011, a monkey in Indonesia made international news by taking a ‘selfie’ with a photographer’s camera. The female crested black macaque picked up the camera and took not just one, but several selfies. Some selfies were out of focus and blurred, but others appeared to be no different than a human would take. The monkey was back in the news this month when a dispute arose between Wikipedia and the photographer, David Slater, over the ownership of the copyrighted photographs. Wikipedia posted the photograph on its website and refused to remove it despite repeated requests by Slater. While this story may seem like typical news fluff, it actually raises several important copyright issues.
First, the issue of copyright ownership must be determined. Slater, the owner of the camera, claims he owns the photos and asked that they be taken off the Wikipedia site. Slater asserts that, as the owner of the camera, he is entitled to ownership of the copyrights in the photograph. In response, Wikipedia alleges that copyrighted works can only be created by humans under the definition of authorship provided by U.S. Copyright law, 17 U.S.C. §102(a). This position is supported by the Compendium of Copyright Office Practices, which notes not only that the term ‘authorship’ implies origination from a human being, but that the term also requires contribution by a human author. If given a broad reading, the law prevents copyright registration for works produced by mechanical processes or forces of nature.
Second, the selfie raises the issue of what circumstances could give rise to copyright ownership, even if a monkey took the photograph. Under U.S. Copyright law, it is likely that Slater would have to establish more than just ownership of the camera. For example, setting up lighting and shadows, creating a background or staging the photograph, and creating and implementing camera angles or setting the camera on a tripod may give rise to ownership even if Slater himself didn’t click the button. Essentially, the final capture of the picture is not the sole consideration in regards to ownership, but rather who has the ultimate creative vision. Here, Slater may argue that he picked the location and timing, but it is unlikely that he contributed enough to give him ownership of the rights.
Finally, it is important to evaluate which country would control the case if a suit were brought. Because Slater is from the United Kingdom, Wikipedia is a U.S. company, and the photograph was taken in Indonesia, it appears that there could be a conflict. However, Slater will likely be able to bring suit in any country where the photograph is being used without authorization, regardless of Slater’s origin, Wikipedia’s incorporation, or where the photograph was taken. This could present a challenge to Slater and prevent litigation because of the extensive costs of international litigation. In addition, most countries do not extend copyright protection to animals, so Slater would have to convince a court otherwise.
This seemingly insignificant series of events makes copyright attorneys question the bounds of copyright law as a whole. If non-humans such as corporations can own copyrights, and machines can take copyrighted photographs on behalf of others, why can’t copyright law be extended to animals? As animals become more and more ‘human’, our laws will have to adapt. As they say, monkey see, monkey do.
Special thanks to Rexford Brabson for this guest post! Rexford is awaiting bar results in California, good luck!