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On Gods and Macaques: Who Owns the Monkey Selfie?

Posted by Rebecca Blake on August 20, 2014

crested black macaque © David SlaterIf an Indonesian monkey in the middle of the forest on a remote island takes a selfie with an English photographer’s camera, who owns the copyright? While this sounds like a pseudo case history dreamt up by a creative law professor to present during a lecture on intellectual property, the story, and the rights issue raised, are very real. British wildlife photographer David Slater spent a number of days stalking a group of crested black macaque monkeys. As the animals became accustomed to him and his equipment, they approached the camera, setting it off. The resulting self portraits, showing the monkeys grimacing at their reflections in the large camera lens, are hysterical.

The photos were an Internet sensation when they appeared on a number of news websites such as the Daily Mail in 2011. (Slater licensed the images through his agent, Caters News Agency.) Recently, the images hit the news again when several of the images, marked as public domain, were published by a Wikimedia user in their “free media repository,” Wikimedia Commons. Slater requested that Wikimedia remove the photos, and the organization refused to do so, stating that the photographer cannot claim to own the copyright since he didn’t actually snap the photo.

So who does own the copyright? Attorney Leslie Burns addressed the issue in her blog post, “On the Monkey Selfie.” In her article, she cited Wikimedia Foundation’s  Chief Communications Officer Katharine Maher, who is quoted in the Washington Post as saying, “What we found is that U.S. copyright law says that works that originate from a non-human source can’t claim copyright.” Burns disputes the basic premise presented by Maher, stating that since the photograph was taken in Indonesia, on a camera that belongs to a UK citizen, US copyright law hardly applies.

Guild Advocacy Liaison Lisa Shaftel expressed a similar view on the Copyright Clearance Center’s, “On Copyright ,” SoundCloud channel. In her opinion, US Copyright law is not relevant to the claim. Shaftel makes no conclusions as to who owns the copyright. However, she dismisses Wikimedia’s claim that the photograph is public domain, stating that the organization is making unauthorized use of the photo.

Burns dug up a case history that could have some bearing. In a second blog post, “More Monkey Business,” she cites the case of Urantia Foundation v. Maaherra. The case hinged on some text that was purported to have been authored by celestial beings. The court looked closely at whether the work was copyrightable, since authors were non-human. The court decision stated “…so as long as a human (or humans) did something to contribute to making this work, then the copyright did exist and vested in those humans.” Burns proposes that were Slater a US photographer, whatever work he did to the images – converting the RAW files, culling the photos, cropping or tweaking the color balance – would confer upon him copyright ownership since the photos were actually snapped by a non-human.

Of course Slater is not a citizen of the United States, and US copyright law is not applicable here. However, the conditions under which the photos were taken may be very relevant to the outcome of the case. Despite earlier stories which reported that the photos were taken without his intervention, Slater’s back story claims that he set up the conditions which enable the monkey-selfie: encouraging the macaques to come closer, adjusting the settings (auto-focus, shutter speed, etc.) to be optimal, placing the camera on a tripod the monkeys would approach, and even steadying the tripod with one hand.

While some may question Slater’s story, what isn’t up for debate is the impact having the photos available on the Wikimedia site is having on Slater’s bottom line. As Petapixel reports, “Whether or not the letter of the law agrees with Slater’s claim is up for debate, but one thing is certain: he’s missed out on a lot of potential licensing fees thanks in large part to the photo being uploaded to the Commons.”

Photo © David Slater. Used with permission.

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