“Monkeys Don’t Own Copyrights”: Wikimedia Denies Claim of British Photographer To Monkey Selfie

monkey_selfieIt may be the best picture British nature photographer David Slater never took. Slater was on a three-day trip to the Indonesian forest in 2011 when a macaque monkey grabbed his camera and took this selfie. Indeed, the monkey took hundreds of pictures. Some of those pictures were distributed on the Wikimedia Commons website. Slater demanded that it be taken down as copyrighted material. However, Wikimedia refused on the grounds that a monkey took the picture, not Slater.

Slater says that he was told that “If the monkey took it, it owns copyright, not me.”

However, Wikimedia Foundation’s chief communications officer Katherine Maher corrected him in saying that the “Monkeys don’t own copyrights.” In other words, if the Monkey would hold the copyright, no one holds the copyright. The monkey gets bananas and Slater gets bupkus.

Slater is promising to fight the claim and this could make for an interesting legal opinion.

Source: ABA Journal

43 thoughts on ““Monkeys Don’t Own Copyrights”: Wikimedia Denies Claim of British Photographer To Monkey Selfie”

  1. Paul,

    Not saying that at all. I am saying that a strong argument can be made that the photo owes it’s origin to a human being. Agency is immaterial.

    I’d analogize this to the trip-wire example above. The animal tripping the “wire” and triggering the camera is hardly an agent of the photographer, but the resulting photograph is certainly of the photographer’s origin as the photographer set the camera and arranged the triggers.

    The instant case isn’t identical, but there are still some things to talk about.

    1. fiver – in this case the monkey stole the camera, took the selfie. The copyright belongs to the monkey. Regardless, copyright does not belong to the owner of the camera who got it by accident. It is like having a load of manure dumped on your lawn by accident. You are not the owner of the manure just because it got dumped there. So, my best guess is that the picture is in the public domain. You cannot prove the monkey is human and only humans can have a copyright. The owner of the camera does not hold the copyright since the picture was not taken by him. So… public domain. Or, the monkey starts getting royalties.

  2. Kevin Underhill has an interesting take on this where he notes the difference between copyright registration, which requires that “a work must be the product of human authorship,” and the copyright itself, which generally does not require registration to be valid.

    He also notes that “human authorship” implies that “for a work to be copyrightable, it must owe its origin to a human being. [emphasis added]”

    Mr. Slater seems to have a few good things to talk about.

    http://www.loweringthebar.net/2014/08/fight-continues-over-right-to-monkey-selfie.html

    1. fiver – are we going to try to make the case the monkey is human? Mike, the monkey is not an agent for the owner of the camera, the monkey is the agent for itself.

  3. I believe that Darren’s view is the most reasonable here. The monkey was in effect an agent for the photographer. However, since there may be an issue of animal rights here, should the dispute be submitted to a kangaroo court?

  4. It seems there are two fundamentally different versions of what happened. In one, the monkey grabs an unattended camera and takes photographs without planning or input from the photographer. In the bbc story (http://www.bbc.com/news/uk-england-gloucestershire-28674167), the photographs works his way into the group, sets up the camera and its settings as well as the trigger in order to get the monkeys to take photographs. I think the latter provides a much stronger argument that the monkey was merely an instrument of the photographer.

  5. I think Wikipedia is right. The monkey took the picture and the guy illegally claimed a copyright which was not his. In this case the claim goes to the monkey who does not have to make a written claim for the copyright. Now the question is how to get the copyright fees to the monkey? That is a different issue.
    Since the monkey hold the copyright, is it really in the public domain or does the monkey hold the copyright?

  6. ” So, in other words, if I lend you my camera, and you take a gorgeous sunset over the ocean photo, and I crop it, I then own the copyright of the photo you took?”

    I would guess that the person who actually took the photo has a strong claim.
    But if the person returns the camera with no mention of the photo or their intentions about the photo then haven’t they abandoned the photo. Exactly how long do you have to maintain the photo before you can delete it of use it as you desire?

    I don’t think cropping is necessarily a mechanical act. I would argue that cropping and other manipulations can rise to the level of creative acts that ought to be protected.

    I don’t think it is easy to say where the line is that separates artistic creation from just a piece of the photo. But at some point the photo is different and shows us something that we did not see before.

    Of course, if the starting source is someone’s property then what follows, no matter how creative, is derivative.

  7. If a photographer sets out a camera with a tripwire, infrared or other trigger that the animal initiates, is the photo intellectual property and who owns the copy write.

    How does that differ from allowing the animal to touch the camera and initiate the photo.

  8. Karen S – So, in other words, if I lend you my camera, and you take a gorgeous sunset over the ocean photo, and I crop it, I then own the copyright of the photo you took? I don’t think that’s the way copyright works. It’s the individual who produces the intellectual property (image, text, music, etc.) who is the copyright holder.

  9. Also, this is another case of sticking to one’s guns when there is no need to.

    Wikipedia it seems is going to invite costly and unnecessary litigation when it is clear they would have met no resistance from the monkey and just removed the photos on the demand of the photographer.

  10. Oxa – I see what you’re saying, but there would be no image at all without the human being. The monkey did not provide the camera, set it up, or process and crop the image.

    In this case, the “solely” produced bar was not met.

    But I am not a lawyer . . .

  11. I agree with Darren that this is still the property of the photographer. The monkey did not upload it or provide the equipment.

    But this is also a cautionary tale to use prominent watermarks and other security features on photos. I know an excellent photographer whose work occasionally gets lifted. Digital theft is a big problem these days.

  12. From the United States Copyright Office’s Compendium II of Copyright Office Practices (http://www.copyrightcompendium.com/#202.02%28b%29):

    202.02(b) Human author.
    The term “authorship” implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.

    Seems pretty straightforward to me.

  13. I am obviously not very familiar with copyright law but I don’t believe Wikipedia’s claim has merit. The photographer was the person who elected to hold the copyright and the image is part of his artistic creation. The monkey was an instrumentality of the creation of the art, not the copyright holder.

  14. Naaaah! It was the guy’s camera & he got the monkey to take the pictures. These Wiki guys do lousy dictionaries with totally false definitions. Sue their dishonest asses.

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