Copyright Monkey Business

monkey selfie
While this monkey is smiling, photographer David Slater certainly isn’t after a copyright claim threw the ownership of this image into question. Credit: David Slater

How does a monkey own a copyright? While this may sound like the beginning of a bad joke, for UK-based photographer David Slater, the question is far from funny. In 2015, Slater and others were sued for copyright infringement on behalf of a monkey. A lawsuit was filed claiming that a monkey created a photograph and is therefore the owner of the copyrights to the image. To add insult to injury, the photograph that Slater and others are accused of infringing is one that Slater claims to own.

For Slater, what has become a long and arduous legal journey started with an assignment in Indonesia in 2011. Slater traveled to the Tangkoko Batuangus Nature Reserve in Sulawesi, Indonesia, to photograph the endangered Celebes crested macaques. In the course of Slater’s interactions with the group of crested macaques, a crested macaque handled one of Slater’s cameras and pressed the shutter release, resulting in the creation of the now-infamous “monkey selfie” image.

Using “selfie” to refer to the image may tend to imply ownership, but that question was far from settled at the time. Indeed, the jury is still out on whether Slater owns the rights to the “monkey selfie” image.

Monkey Ownership And Other Questions

Slater provided images of the crested macaques to Caters News Agency, and through Caters’ efforts, Slater’s images of the crested macaques, including the “monkey selfie,” were initially published by The Daily Mail, The Sun and The Daily Mirror. One of those images came to the attention of Mike Masnick, the editor of the technology news blog Techdirt. Techdirt featured a brief article addressing Slater’s images and questioning how the copyright to the “monkey selfie” could have been assigned to Caters. Along with the article, Techdirt published three of Slater’s photographs, including the “monkey selfie” image and one featuring Slater himself.

Shortly afterward, the Caters News Agency sent Masnick a notice requesting that Techdirt remove Slater’s images. Masnick promptly responded to the notice, questioning whether Slater owns the copyrights to the images. Masnick also argued that Techdirt’s use was “quintessential fair use under U.S. copyright law.” Ultimately, Masnick refused to take down Slater’s images, and, instead, published Caters’ efforts to cause Techdirt to take down Slater’s images. In the days that followed, Masnick published two additional articles regarding the dispute. In one of his follow-up postings, Masnick conceded that “a photographer could potentially claim copyright on an image shot by someone else if they really were involved in ‘setting up the pictures,’ but that means actually setting up what the photo is about: the framing, the composition, the angle, etc.”

Around the same time that Techdirt was questioning Slater’s ownership of the images, a version of one of Slater’s crested macaque images was uploaded to Wikimedia Commons. Slater discovered the upload in 2014 while searching for other images from his trip to Indonesia, and promptly requested that Wikimedia remove the image. Wikimedia refused. In a nutshell, Wikimedia did not agree with Slater that he owned the rights to the “monkey selfie” image. Wikimedia subsequently published a licensing reference with the image that explains, “[t]his file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”

Slater saw his licensing revenues experience a steep dropoff. In the first year after his trip to Indonesia, Slater received £2,000 in licensing fees for the images of the crested macaques. Once Wikimedia made the images available, claiming they were in the public domain, Slater saw has licensing fees for the photographs stop. For two years, Slater did not receive any licensing revenue for the images, and it was only after 2014 that Slater started receiving any additional licensing fees despite continued widespread use of the images.

Monkeying With The Law?

Contrary to the simplistic theories espoused by Masnick and Wikipedia regarding ownership of the “monkey selfie” image, the questions of who actually owns the copyrights to the image, and whether the image is truly in the public domain, are considerably more complex.

The U.S. Copyright Office publishes the Compendium of U.S. Copyright Office Practices, which addresses Copyright Office practices and policies. At the time Slater’s images started to raise legal questions, the most recent edition of the Compendium was nearly 20 years old. However, the Second Edition of the Compendium, released in 1984, did briefly address the issue of works not originated by a human author. According to the Compendium, “[i]n 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 registerable.”

In 2014, the Copyright Office released the Third Edition of the Compendium. That updated edition expands on the subject of works lacking human authorship. Now, the Compendium explains that the “[Copyright] Office will not register works produced by nature, animals, or plants.” The updated Compendium also includes a series of examples, including a “photograph taken by a monkey,” a “mural painted by an elephant,” and a “claim based on cut marks, defects, and other qualities found in natural stone.”

Although the U.S. Copyright Office may not be willing to register works created by animals, that still leaves unanswered the question of whether Slater owns the copyright to the “monkey selfie” image. In order to determine whether Slater owns the copyright, there must be a determination as to whether Slater or the monkey is the “author” of the image.

It is apparent from the positions and statements made by Wikimedia and Masnick that they believe the crested macaque is the author because it pressed the camera’s shutter release. Implicit in this view is that copyright arose the moment the image was “fixed” in a tangible medium, namely the recording of the image on the memory card. However, the Copyright Act is not so rigid to foreclose other possibilities. Indeed, the current Copyright Act defines the term “fixed” to include the concept that the fixation be “by or under the authority of the author.”

The U.S. Supreme Court has held that “[a]s a general rule, the author is the party who actually creates the work, that is, the person who translates the idea into a fixed, tangible expression entitled to copyright protection.” However, even this rule has limits. When a person authorizes fixation, the process must “not require intellectual modification or highly technical enhancement…” In a case where a person provided specific direction to an artist, who actually drew a set of maps, a U.S. court determined that the person providing direction was entitled to be considered the author of the maps for copyright purposes (although the same court suggested that the artist who was following instructions might also be a joint author).

Since the image was created in Indonesia, and Slater is based in the UK, it is entirely possible that a nation’s law other than the U.S. may ultimately supply the answer as to the identity of the author of the “monkey selfie” image. That fact alone may bode well for Slater.

In December 2011, the European Union Court of Justice determined that portrait photography was subject to copyright protection “if the author was able to express his creative abilities in the production of the work by making free and creative choices.” As that court determined, “the photographer can make free and creative choices in several ways and at various points in its production.” These creative choices could occur in the “preparation phase” involving selection of background, pose and lighting; they could occur when “taking a portrait photograph” through the selection of framing, angle of view and atmosphere created; and they could occur during post-production with the selection of various developing techniques or use of computer software.

Monkey See, Monkey Sue?

Just as Slater was preparing to take legal action against Wikimedia, he found himself embroiled in a lawsuit in the U.S. PETA, on behalf of “Naruto”—the 6-year-old crested macaque named as the plaintiff—sued Slater and others for copyright infringement.

According to the allegations of the complaint, crested macaques are “highly intelligent, capable of advanced reasoning and learning from experience. Like other primates, including humans, Naruto and all crested macaques have stereoscopic color visions with depth perception and are vision dominant.” The complaint goes on to assert that “Naruto authorized the Monkey Selfies by his independent, autonomous actions in examining and manipulating Slater’s unattended camera and purposely pushing the shutter release multiple times, understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.”

In a somewhat ironic twist, it turns out that the crested macaque in the “Monkey Selfie” is not actually Naruto. Says Slater, “I am being sued…by the wrong plaintiff.”

Ultimately, it is simply the notion that Slater is being sued for copyright infringement by any monkey that allowed the court to reach a decision in the case. Earlier this year, Judge William H. Orrick dismissed the Naruto case because a monkey is not an “author” under the Copyright Act. Since animals cannot be “authors,” and since the Copyright Office will not register works created by animals, the judge did not believe that Naruto had standing to sue.

The judge also suggested that if those arguing on behalf of Naruto sincerely believe that dismissal is “antithetical to the tremendous [public] interest in animal art,” they should make that argument to Congress and the president, not to the court. “In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.”

Monkey On Your Back?

The authorship questions raised in Slater’s dispute with Wikimedia and in the Naruto case highlight the need for greater clarity within the law.

For example, there are strong arguments to be made that the involvement of non-human influences on the creation of the image should not detract from the photographer’s role in making creative choices that help create the image. To suggest otherwise is to denigrate the creative role that photographers play simply because they used lightning-sensitive triggers to trigger landscape photographs or motion-sensing triggers to capture images of animals in the wild.

If the issue of authorship would be determined by application of a rigid test—e.g., the author is the person or thing responsible for triggering the camera—then under such a test, photographers who use assistants to trigger remote cameras will effectively relegate their own role while promoting their assistants to the status of author; even a somewhat less rigid test may result in the photographer and assistant being viewed as joint authors.

Since the Naruto case is presently focused on the issue of whether an animal has the right to sue for copyright infringement, it is unlikely that the case will shed any additional light on the issue of who actually owns the rights to the “monkey selfie.” On the other hand, the case may provide momentum for legislative changes to copyright law. In the meantime, we will have to see how the case plays out.

Learn more about photographer David J. Slater and DJS Photography, including workshop opportunities, on his website.

Samuel Lewis is a Board-Certified Intellectual Property Law specialist and shareholder at Cozen O’Connor in Miami, Florida, and a professional photographer who has covered sporting events for more than 30 years. He can be reached at [email protected] or [email protected].

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