That Monkey Selfie: Who Owns The Copyright to It?

Wikimedia Commons and photographer David Slater appear to be headed for court over who owns the rights to a selfie shot by a macaque monkey that grabbed Slater’s camera. The photo went viral last week.

The Telegraph now reports that Wikimedia, a collection of 22 million public domain images, has refused Slater’s demand to remove the photo from its web site. Slater is preparing to sue, the newspaper says.

Wikimedia’s legal defense, effectively outlined in the caption it reportedly posted with the photo, is that the author of a photo owns copyright, not the camera owner;  that only people can own copyright, and monkeys aren’t people; therefore, the photo in question is ineligible for copyright by anyone, so it’s in the public domain.

This is the kind of copyright case we were never expecting to see. But now we’re wondering: if corporations have the rights of persons, why not monkeys? Are there any armchair attorneys out there who want to make a copyright argument on the monkey’s behalf?

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15 Responses to “That Monkey Selfie: Who Owns The Copyright to It?”

  1. John Grant Says:

    Actual copyright attorney here. Case law is very clear that copyright protection is rooted in the creative choices of the author. For photographers, this has to do with all sorts of factors: framing the shot, staging the subjects, the lighting, and post-production choices (to name a few factors). If I understand this story correctly, the macaque had full control of the camera when the photos were captured, so it is hard to see where the photographer could argue that he expressed his creativity (I doubt that handing a camera to a monkey counts as a creative act). The other things the photographer mentions in the article (the effort and expense of getting his equipment to that location) is what courts call “sweat of the brow” and is not considered creative work for copyright purposes. Maybe he did some photoshopping that would count as creative (the article doesn’t say), but based on the facts reported by the Telegraph I think the photographer’s copyright claim is thin-to-nonexistent.

  2. M.C. Valada Says:

    Actual copyright lawyer AND professional photographer here. Ever heard of work for hire? It applies against a studio assistant. The equipment belonged to the photographer, but for the photographer, there would be no pictures. The photographer did all of the work associated with making the pictures useful (we must assume that digital photos required post-production decisions that the monkey was not likely to have the skill to make. And the monkey was a thief. Without the photographer, no pictures made it to the public.

    So tell me, does the photographer (or say, National Geographic) not have copyright rights to images created when an animal trips an electronic beam in the middle of the night? Is a photographer not entitled to the copyrights of photographs made by her assistant in the process of covering all aspects of a shoot for a client? Is a newspaper not entitled to the copyrights of photographs taken by its employees? Frankly, I think that whatever bribe the photographer had to give the monkey to get the camera back was good and adequate consideration for the photographer’s right to the copyrights on these images.

    All this assumes U.S. law. Not sure about the law of the land where the images were made or the homeland of the photographer. What I am sure of is that Wikipedia is full of crap and doesn’t want to pay for the use of images which rightly belong elsewhere. The company uses images illegally all of the time. It just got caught on this one. Arrogant pigs.

  3. John Grant Says:

    Very familiar with Work Made for Hire. In order for a work to be a WMFH, it has to fall under the specific definition found in 17 USC 101.

    The first instance of a WMFH is where there is an employer-employee relationship, any works created by the employee in the course of her employment are the copyrighted property of the employer. This covers your studio assistant (if she is an employee) and newspaper photographer, but I doubt the macaque is on the photographer’s payroll (bribes notwithstanding ;-). I think its safe to say that no employee-employer relationship exists.

    In an independent contractor relationship, there are two preconditions that must be met for a work to be considered a WMFH: (1) there has to be a written agreement saying that the work produced is a “work made for hire;” and (2) the work has to be “specially ordered or commissioned for use as a contribution to a collective work.” I don’t think either of those requirements were satisfied in this situation, so we don’t have to examine whether the macaque was otherwise an independent contractor.

    Regarding photos from trip-wires and other setups: I think the fact that a photographer (or her employee) sets up the shot speaks to a creative contribution. The photographer typically selects the location, frames the shot, and makes other creative choices that seem to suggest a copyright interest in the resulting work. That’s a very different situation from a non-human toying around with a camera and getting lucky with a few photos–I just don’t see what creative choices the photographer made with regard to the monkey selfie.

    (I have similar questions about the copyright ownership of pics and videos made with collar cams like these: http://www.amazon.com/Digital-Collar-Camera-Recorder-Monitor/dp/B00CL3JTRO)

    I agree that all of this presumes US law (I believe the photographer is British and the macaque is Indonesian). Still a fun problem to wrestle with and a good vehicle for helping people understand the extent–and the limits–of copyright law.

  4. Michael Says:

    Not a copyright attorney here. Not even close. Just observing one more reason to kind of hate corporations and the attorneys hired to jip creatives.

  5. Gordon Moat Says:

    The monkey should file for unemployment compensation.

  6. Michael Says:

    Not a copyright attorney here. Not even close. Just seeing one more reason here to hate corporations and their attorneys that find ways to stick it to creative talent.

  7. Daniel Berman Says:

    This is an open and shut case. It’s clear and obvious the photographer has no claim to copyright. He didn’t hit the shutter, he didn’t compose the shot, he didn’t set the lighting or make-up, there are no unique multiple exposure elements set up beforehand, no sets, no art design, no exclusive wardrobe, etc…it’s a monkey face. That’s it. Unlike a set-up trip wire, in this case there really is zero contribution from the photographer in the making of the image. Yes, he made it there to that spot with his gear. That doesn’t constitute copyright over the creation of a creative work. The image is no more his to copyright than it would be if a human had taken camera, took off around the bend and shot a selfie.

    Truly, it must suck to travel around the would, and through sweat and talent end up in a situation where a monkey takes your camera and shoots a once in a lifetime shot. Amazing. A life moment none of us will likey ever experience. And he’s probably emotionally protective of what he’s been through. Fair enough. Still not his copyright.

  8. Keith Simonian Says:

    The photographer should claim he gave the monkey a banana before he took the photos there by creating a work for hire agreement.

    Since it’s unlikely the monkey would appear in court to refute that claim, the photo belongs to the photographer ( David Slater) unless proved otherwise.

    That seems to be a much more valid argument than the “monkey owns the copyright” theory.

  9. Eeps Says:

    M.C. Valada brings up a good point – “what about those instances when an animal trips an electronic beam in the middle of the night?” Does the photographer lose copyright of a photo if he doesn’t trigger the shot?

  10. Regele IONESCU Says:

    „handing a camera to a monkey counts as a creative act” – yes, it does! contrary to what mr John Grant says. Remember the Brancusi trial when he brought his first works in USA for the Armory show it was a great debate whether a piece of steel is work of art or not. Our perception of what is art has changed in time. One has to accept that handing a camera is as creative as any other form of art and all products resulting from this gesture belong to the author. If you mount a camera on a plane does the picture belong to the plane? But, if you hand the camera to another person it is a different story. As far as I know monkeys are no person.

  11. Marco Zanotti Says:

    Oh please…
    What’s this all about? Protecting the macaque’s rights and intellectual property? That’s ridiculous and you know it is.
    The ultimate proof to show your rights on a photograph is possessing the original file/negative. The photographer has it, he owns the picture. Regardless of how poorly creative he may be.
    The monkey could make a copyright claim, but chances are it won’t. Nor will it care to do so as we would.

    “Well now whose this picture you’ve taken, Mr Monkey?”
    “Uh?”
    “I really have no idea.”
    “Oh come on man! It’s yours! What do you expect me to do, go back to my place in the jungle and upload it to my Facebook account?”
    Try and be sensible.

    [Photographer]: “That is MY photograph you’re using! You paid me NOTHING for that!”
    [Wikipedia]: “You liar! The photograph is Mr Monkey’s by right! You can’t exploit it! We will.”

  12. Turtle Says:

    I like turtles.

  13. That Monkey Selfie: Who Owns The Copyright to It? | Xcuz Me Says:

    […] post That Monkey Selfie: Who Owns The Copyright to It? appeared first on […]

  14. HowAboutThis Says:

    Monkey tripped shutter.
    Photographer processed image.
    Did latter add own “elements”
    or leave as it was straight out of camera?

  15. International League of Conservation Photographers Says:

    As an organization that aims to promote and protect the interests of all photographers, iLCP strongly supports David Slater and all photographers whose images are being used without their explicit consent by groups like Wikimedia. For our official statement on this issue please see: https://drive.google.com/file/d/0B2CVtFFEp8nJaXIyTS1McDJrZDA/edit?usp=sharing