By Scott Hervey
Recently, Wikimedia (the entity behind Wikipedia) has refused repeated requests from professional photographer David Slater to remove from one of his most famous photos from its royalty free photo collection website. The photo at issue is a “monkey selfie.” Slater claims he owns the copyright to the photo and Wikimedia is using it without his permission. Bananas! claimed Wikimedia; a recent report reveals that Wikimedia editors decided that Mr Slater has no claim on the image as the monkey itself took the picture.
In what must be the wildest of luck, Slater was visiting a North Sulawesi national park in Indonesia when a black macaque grabbed an errant camera and took an amazing array of self-portraits. These amazing pictures ran in an July 5 article about the incident in the UK’s Daily Mail. Two of the four pictures featured in the article included a copyright notice indicating Caters News Agency (Slater’s photo agency) as the owner.
Can Canters News Agency or Mr. Slater own the copyright in the photos taken by this highly intelligent and obviously photogenic? In order for this to be the case, the monkey would have to be an author under the Copyright Act. And if a monkey can be considered an author, he or she would have to assign or transfer the copyright in the photos to Caters News Agency.
Section 201(a) of the Copyright Act provides that the initial ownership of the copyright in a work protected under the Act vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. So who can be considered an author? According to the Copyright Office FAQ page, “[u]nder the copyright law, the creator of the original expression in a work is its author.” Since the monkey was the creator of the pictures in question, is the monkey the author for the purposes of copyright ownership? According to the internal Copyright Offices practices, as codified in Rule 503.03, the monkey may not be considered the author. Rule 503.03(a) states:
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.
If Whether or not the monkey – who obviously studied photography via correspondence school- could be considered a “force of nature” is a topic for another day. Assuming that the monkey grabbing Mr. Slater’s camera and shooting over 100 photos would be considered a “force of nature” then the photos would not be the subject of U.S. copyright protection and would fall into the public domain. Works in the public domain may be copied and used by anyone.
The only way for Caters News Agency or Mr. Slater to claim copyright ownership of the photos would be for Mr. Slater to own the copyright in the photos. Mr. Slater has taken the position that this fortuitous event was a “planned artistic event.” Given details of the story that ran in the UK Daily Mail. Mr. Slater’s position seems highly unlikely. However, if that were the case, if Mr. Slater somehow managed to convince the monkey to do his best impersonation of Ansel Adams, Mr. Slater may in fact be considered an author for the purposes of the copyright act.
However , if this were not the case, might the fact that he owned the camera vest him with some ownership rights? Most likely not (at least not in the US). Section 202 of the Copyright Act discusses how ownership of copyright is distinct from the ownership of a material object related to the creation of the work in question. That section provides as follows:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phone record in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
Since Mr. Slater’s ownership of the camera would not help vest either him or Caters with copyright ownership of the photos and it’s not likely that Mr. Slater would be considered an author of the photos under U.S. Copyright laws, how can Mr. Slater still claim a copyright in the photos? It seems that their position would have to be that a monkey can be an author for the purposes of copyright, and that this monkey was Mr. Slater’s assistant who took the shoots in the course and scope of his employment or that the monkey signed a contract which stated that the photos were “works for hire.”