Question: What do you get when you cross a curious primate with an unattended camera?
In addition to the beginning of a bad joke, a rather quirky question of copyright law.
The story began when professional photographer David Slater brought thousands of dollars’ worth of photography equipment on the trip of a lifetime to Indonesia in 2011 to photograph the Celebes crested macaque, also known as the crested black macaque, a critically endangered primate species. One day, a macaque got its hands on one of the cameras and started, well, monkeying around. The end result: hundreds of blurry out-of-focus pictures and a handful of shots worthy of a feature in National Geographic, including the now infamous ‘monkey selfie’ photo which has appeared on websites and news media around the world. The photo also ended up on Wikimedia Commons, an online collection of royalty-free photos that anyone can download and use.
Despite repeated requests by Mr. Slater to have the photo removed (some of which were successful, before the photo was re-uploaded), Wikimedia Commons ultimately declined to remove the photo, claiming it is in the public domain. Which brings us to our real question: can a monkey hold a copyright?
Wikimedia argues not, and thus, because there is no one upon whom the copyright can be bestowed, the image is ipso facto, public domain. Mr. Slater counters that it was his actions that made the photo possible, and the macaque did no more than press a button. Thus, he is the copyright owner, and as such, is owed royalties from the publication of the photo. Now, he is considering taking Wikimedia to court in an attempt to get a legal determination. So, who is right?
Under U.S. copyright law, governed by Title 17 of the United States Code, ownership in a copyright can occur one of two ways: either it is automatically vested in the author or authors of the work, or in the case of a work made for hire, the employer is considered the owner and owns all of the rights (unless expressly agreed otherwise via written contract). Since there is no indication the macaque was in the employ of Mr. Slater or anyone else when the photograph was taken, the monkey presumably is the author, and thus, the copyright owner.
But not so fast! According to Compendium II: Copyright Office Practices:
“503.03(a) Works-not originated by a human author.
In order to be entitled to copyright registration, a work must be the product of human authorship”
(Due to the Copyright Office web site undergoing a major revision as of October 2011, an unofficial copy is available here.)
Thus, as far as U.S. law is concerned, it would appear Wikimedia is correct and the picture belongs to the public domain.
Punchline: A cute photo which is not even worth chimp change