Monkey See, Monkey Do…Now Who Owns the Copyright?
Selfie: “a photograph one has taken of oneself which is usually shared via Social Media.”[i]
Oh those selfies, they have become quite the popular phenomenon among celebrities, world leaders, kids, other humans and, most recently, monkeys. Yes, quite correct. Monkeys take some adorable selfies. In fact, any animal taking a selfie is adorable. True to their natural order, people are clamoring to post animal selfies all over the place. Who doesn’t love a cute animal that can work a camera lens? Beyond their cuteness, monkey selfies raise an important legal question: What happens when a monkey takes a selfie with a photographer’s camera? Who owns that selfie?
In 2011, British photographer David Slater traveled to Indonesia to photograph the wildlife, including a group of charming macaque monkeys. While trying to take candid wildlife photos, several of the macaques got into some monkey business with Slater’s camera equipment and one very photogenic female macaque managed to snap a selfie of which any human would be proud. The flattering self-portrait was published worldwide in magazines and on websites.[ii] Wikimedia commons was just one of the many websites exhibiting the talented monkey’s glamor shot.
Proud of what he believed to be his work, Slater demanded Wikimedia either: 1) remove the self-portrait, or 2) pay for its use; Wikimedia chose the third option—it did neither and denied Slater’s request on the basis that there was no copyright in the monkey’s photo.
In order for a work to be copyrightable, it must 1) be fixed in a tangible medium (i.e. a photograph), 2) it must be original, and 3) it must have an author. Slater claims that he is the author. After all, he did all the set-up; it just so happened that the monkey snapped the picture. Slater’s position is that the photographer who owns the equipment and sets-up the photograph owns the selfie. Before the photogenic chimp monkeyed around with Slater’s camera to snap her selfies, he had set the equipment up on a tripod and adjusted accordingly for the optimal lighting. Since Slater provided the monkey with the resources to take said selfie, he contends he owns the photo-gone-viral.[iii] Thus, when Wikimedia posted the chimp’s artful self-portrait on their website, they violated Slater’s copyright.
Not surprisingly, Wikimedia argued otherwise. According to their argument, the monkey took the selfie and doesn’t give two bananas whether or not Wikimedia distributes it.[iv] The Wikimedia page on the licensing even states, “this 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.”[v] Basically, Wikimedia claims: non-human author, no copyright. Slater claims: his resources, his time, his set-up and, despite the small fact he didn’t snap it, his photo.
So then, who does own the copyright to that adorable gem of a photo? The answer: No one. The U.S. Copyright Office has officially stepped in to settle the monkey business surrounding the now infamous Monkey Selfie. They have even gone so far as to make a blanket statement regarding selfies taken by all animals, and it’s bad news for the animal photographers (“animal photographers” as in animals who are photographers). In a 1,222-page report discussing federal copyright law, the U.S. Copyright Office stated, “The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings…”[vi]
To drive their point home, and in a nod to Slater, the U.S. Copyright Office lists examples of such non-copyrightable photographs, including “a photograph taken by a monkey.”[vii] Unfortunately for Slater along with amateur ghost photographers (that is, photographers who are ghosts) and macaque monkeys, this means the monkey selfie, and all selfies taken by non-humans, fall into the public domain and Wikimedia may legally distribute them.
Better hold on tight to your cameras and cell-phones when taking your next walk on the wild side.