By Susan McLean and Craig Whitney
The “selfie” is now so ubiquitous that the word is in the Oxford English Dictionary, you can use it in Scrabble and it has spawned a whole new lexicon. Selfies are no longer the preserve of teens and reality stars; you now have politicians, royalty and companies getting in on the act. Selfies can mean big business—indeed, it was recently announced that Kim Kardashian, the reality star and “queen of the selfie,” will publish a book of 352 of her favorite snaps next year at $19.95 a pop.
But unfortunately for our simian friends, it seems that selfies are simply not monkey business.
In 2011, British wildlife photographer David J. Slater was in Indonesia taking photos of macaque monkeys. Some of the monkeys began playing with his digital camera and a female monkey managed to take a particularly excellent self-portrait, reproduced below.
The photo was published in various magazines and on websites around the world. It eventually was added to Wikimedia Commons, a collection of images that are free for public use.
Slater asked Wikimedia to remove the image or pay for its use; Wikimedia did neither. Last week it came to light that Wikimedia had denied a notice-and-takedown request regarding the photograph on the basis that there was no copyright in the monkey’s photo.
A photographer left his camera unattended in a national park in North Sulawesi, Indonesia. A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits. The pictures were featured in an online newspaper article and eventually posted to Commons. We received a takedown request from the photographer, claiming that he owned the copyright to the photographs. We didn’t agree, so we denied the request.
So, Is Wikimedia Correct?
Unfortunately for all budding animal photographers out there (that is, photographers who are animals) the legal status of the monkey selfie would seem to be pretty clear-cut.
These circumstances involve a UK photographer, a U.S. website and one striking Indonesian macaque. While the applicable law could be that of any of those jurisdictions, the macaque will be hard-pressed to find support in any of them.
- -Under the UK’s (one might say “discriminatory”) Copyright, Designs and Patents Act 1988 (CDPA), the copyright in an artistic work such as a photograph is owned by the person who creates it. And, under English law, “person” means human or corporate entity, but does not include animals.
- -The U.S. Copyright Act, on the other hand, only requires that there be an author—it does not specify that the author be human. Nevertheless, for practical purposes, the author would either need to be human or a corporate entity. Indeed, the U.S. Copyright Office has previously advised in Section 202.02(b) of the Compendium II of Copyright Office Practices that, for a work to be copyrightable, it must “owe its origin to a human being,” and that materials produced solely by nature, by plants or by animals do not count.
- -Indonesia provides no better protection for its monkey citizens, as its Copyright Act 2002 refers to persons.
Of course, technically, Slater may be able to bring an infringement suit in any country in which the photograph is being used without authorization. We are not aware, however, of any countries that have extended copyright protection to works created by animals.
What About Slater?
So, if the law does not acknowledge the monkey as a copyright creator, can Slater be considered the copyright owner?
Simply owning the camera that took the photo is not enough. Copyright law is in place to protect the creators of artistic works, not the owners of equipment. (Interestingly, this was not always the case. Under an earlier copyright law—the UK Copyright Act 1956—the author of a photograph was defined as the person who at the time the photograph was taken “owned the material on which it was taken.”)
Slater reportedly argues that he owns the copyright in the photograph because he set up the photograph, even if the monkey pressed the button to take the image. He claims that the monkey is akin to a human assistant who helps to prepare a shot. Based on the facts that have been published to date, it would seem difficult to draw such a conclusion.
Typically, assistants are there to help the photographer achieve his or her creative vision. However, given that the snap in question appears to have been very much the key photo among hundreds of blurry and unusable images taken by the group of monkeys, it would seem difficult to demonstrate that anyone—human or monkey—“created” it. Rather, one may argue that the photo was an entirely random and serendipitous event.
Under U.S. law, if the monkey had merely snapped the photo on command—no different than, say, an automatic shutter—then Slater would have a compelling argument that all of the artistic expression in the photo was his, and that he was properly the author. But that was not the case.
Slater might also argue that the monkey was his assistant, and that the monkey’s photo was actually a work for hire under U.S. copyright law, making Slater the author of the work. And while the U.S. work-for-hire doctrine does contemplate that a non-human (such as a corporation) could be an “author” (17 U.S.C. § 201(b)), it would require that, at a minimum, the monkey be Slater’s employee or that they otherwise have some written agreement in place, and, let’s face it, only a kangaroo court could reach such a conclusion here.
Or perhaps Slater and the monkey are co-authors, which under U.S. law would allow each co-author the right to license the entire work, provided one co-author accounted to the other as to her proportionate share of any royalties. But if the monkey cannot be an author, surely she cannot be a co-author either. Plus, who would get the monkey’s share of the royalties? People for the Ethical Treatment of Animals? The World Wildlife Foundation?
Slater could seek to draw a parallel with computer-generated works. The UK’s CDPA, for example, states that the author of a “computer-generated” work shall be the person who undertakes the arrangements necessary for its creation. A “computer-generated work” means a work generated by a computer in circumstances where there is no human author.
Now, a digital camera could be classified as a computer, and here there is no “human author,” but would a court hold that Slater should be entitled to the copyright, particularly if Slater set the camera to a certain shutter speed, and adjusted for light conditions and so forth, before the monkeys ran off with the camera?
Or would the court instead accept the counterargument that a monkey selfie is not a computer-generated work any more than a painting by an elephant is a paintbrush-generated work; it is an animal-generated work and copyright law doesn’t cater to those?
It’s difficult to say. Slater may have more success if he can show that the version of the photograph on Wikimedia is not the actual selfie taken by the monkey, but has been filtered, cropped or otherwise edited; as a separate copyright may attach to the edited picture, at least under the copyright laws of some countries.
So, going back to our talented amateur monkey photographer, it is reasonably clear she can’t create a copyrighted work, and also unlikely that Slater would be considered the copyright owner in any event. But what about rights of publicity or image rights? Or database rights attaching to the suite of photos? Or data protection and privacy rights? Could these legal theories prove more fruitful for Slater and his “assistant”?
Or perhaps the fact that our simian pals are not able to be copyright authors should be viewed as a blessing, rather than a curse. After all, if a monkey can’t create a copyright, presumably a monkey can’t infringe one either
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Sue McLean is Of Counsel in the London office of Morrison & Foerster and is a member of the Technology Transactions Group and the Global Sourcing Group. Craig Whitney is Of Counsel in the Litigation Department of the firm’s New York office and a member of the firm’s Intellectual Property Group.