By: Jessica Mendelson
Looks like some copyright monkey business is afoot! Wikipedia, the collaborative free online encyclopedia, and David Slater, a British photographer, are currently in a copyright dispute over a photograph taken by a primate.
In 2011, Mr. Slater traveled to Indonesia. As part of his trip, he took photographs of a number of animals, including various macaques. During one of Mr. Slater's photo shoots, an adventurous macaque stole the camera and began to shoot hundreds of photographs. Apparently the macaque was well versed in popular culture fads, and took a photograph of itself, known as a “selfie." The selfie was posted online, and in 2014, Wikipedia published one of the images to its repository of freely available photos. The selfie itself can be seen here. Wikipedia also added the photo to its repository of images.
Mr. Slater saw the image on Wikipedia, and repeatedly requested that the company remove it. After Wikipedia failed to do so, Mr. Slater notified Wikimedia, the non-profit company behind Wikipedia, that he intended to bring a lawsuit in the United States for copyright infringement, alleging that he had invested thousands of dollars in obtaining the images, and had been damaged by their resulting use. Additionally, he argued that because the image was created using his camera, he therefore owns the copyright. As Mr. Slater told the Today Show earlier this week, "If I have an assistant, and the assistant presses the camera on my behalf, I still own the copyright.”
However, Wikipedia and their attorneys disagree. They argue that the photograph is in the public domain because the monkey, not the photographer, created the work. According to Wikipedia, the image was the work of a non-human author, and therefore, no human author owns the copyright. According to this logic, the images taken by the macaque were part of the public domain and therefore Wikipedia was well within its rights to publish the image.
The ensuing controversy has led some individuals to side with Mr. Slater, on the theory that it was his camera, and therefore he owns the photograph. However, most experts agree that Mr. Slater likely has no claim to the photo, since he put no creative effort into the work. Under U.S. Copyright Office guidelines, for material to be copyrightable, the work must have an "author." In the U.S., the term "authorship" implies that the work must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable. Here, Mr. Slater likely lacks any copyright claim to the photograph as he put no creative effort into the work.
If Mr. Slater does sue, experts suggest that he could claim that the setup he undertook for the photos was elaborate and creative, and therefore, he did engage in creative efforts despite the fact that the macaque actually took the photograph. As one expert put it, "the photographer would have to convince the Copyright Office that there was enough in the way he set up the camera" to show creative efforts. Another expert suggested that if Mr. Slater had "conceptualized images of wildlife in a specific location with certain lighting and other particular choices" which appear in the finished product, the photo could be eligible for protection. Still others suggest that Mr. Slater could have improved his case by exerting creative effort: Mr. Slater could have altered the image in post-production, and then claimed a copyright. However, given that Mr. Slater did not do so, he is unlikely to recover for copyright infringement.
This case will likely continue in the courts, and how it turns out remains to be seen. We will continue to provide updates as the case progresses.
To see a copy of the article “Going Ape Over IP: 5 Burning Questions About Monkey Selfie”, click here.