Last week, numerous media outlets reported that British nature photographer, David Slater, had asked the Wikimedia Foundation (the editors of Wikipedia and owners of Wikimedia Commons, a website featuring a collection of images free for public use), to remove from the site “his” photos of a monkey that were uploaded without his permission. However, the Wikimedia Foundation refused to do so. According to the Wikimedia Foundation, since monkeys can’t hold copyrights, the images are in the public domain. (We are not told WHO actually first uploaded the photo to Wikimedia. Presumably, it was not the monkey.) While it may seem like a silly thing to be fighting about, Slater claims that he has lost tens of thousands of dollars in revenue.
As a result of the refusal to remove the image, Mr. Slater now plans legal action, saying that the photo is his because he supplied and set up the camera. According to Slater, under copyright law “if I have an assistant then I still own the copyright…. I believe there’s a case to be had that the monkey was my assistant.”
The photo was snapped by the primate in 2011 in Indonesia. The facts surrounding the event appear to be somewhat in dispute. According to a story that first appeared in The Telegraph in 2011, “the crested black macaque hijacked the camera and started snapping away.” However, in a new video uploaded to that same publication’s website, Slater said “I wanted that one shot full in the face…but it wasn’t going to happen, not unless they took the photograph themselves. And I did that by setting it up on a tripod with a cable release, walking a few meters away, allow them to come in, watch their own reflections, play with the camera, play with the cable release, and bingo, they took their own shots.”
The legal issue at hand is whether or not Slater owns any copyright interest in the photos, even if the animal pressed the shutter on his camera.
Under the Copyright Act of 1976, copyright subsists in “original works of authorship.” That term is not defined in the statute. However, the legislative history to the Copyright Act says that phrase is “intended to incorporate without change the standard of originality established by the courts under the present copyright statute [the 1909 Copyright Act]. This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.”
The Copyright Act contemplates ownership of copyright by individuals, groups of individuals and entities. There is nothing in the statute to suggest that it was designed to cover works created by animals, or machines acting alone. So, a painting “created” by an artistically-inclined dog would not protected by copyright, but the very same painting “created” by a two month old baby would be so protected.
In this case, to the extent that Slater created enough of a copyrightable interest (for example, setting the angle and lighting, composing the foreground and background of the photo, etc.) there could be a copyrightable interest owned by him. Under the Copyright Act, the work need only be an original work of authorship, and that is a fairly low hurdle to clear. If that turns out to have been the case, and the monkey’s aping of the photographer’s snapping of photos with the camera (sorry, I couldn’t resist) by pushing the remote camera button was nothing more than the equivalent of using a remote control to turn on a movie camera, then Slater may prevail. On the other hand, if Slater’s contribution to the process of capturing the monkey photo consisted purely of providing the equipment that was then “used” by the monkeys, no copyright interest was created.
Say “cheese” and pass the bananas.