'Let's Take a #Selfie,' Said the Monkey: A Case of Questionable Copyrights

September 19, 2014

(as published in Wired Innovation Insights)

A recent monkey “selfie” took the media by storm, wowing the web and going viral on every major news site from the BBC to The Huffington Post. Circles of internet whisperers across the globe debated whether the photo’s copyright belonged to British wildlife photographer David J. Slater or, in fact, a crested black macaque who happened to snap the photo.

While the image originally went viral in 2011, it returned to headlines this August when Wikimedia refused the photographer’s request to remove the image from Wikimedia Commons. Wikimedia held that the image — captured by the monkey with Slater’s camera — is part of the public domain. The fact that the animal clicked the image itself in an Indonesian forest is not disputed by Slater; however, he argues the photo is still part of his work and is his property.

The United States Copyright Office chimed in with its two cents in the recently published third edition of the Compendium of U.S. Copyright Office Practices – the first revision in over two decades. While prior publications were largely internal, the third edition is a push to make the practices and standards of the Copyright Office more timely and transparent while providing guidance on some fundamental principles of copyright law. Its verdict? Monkey selfies can’t be copyrighted.

In the age of hyperconnected, always-on, muploads, likes and hashtags, how does intellectual property fit into the equation? How do we define “ownership” when pieces of content — especially images — are continuously created and uploaded into the public domain in a matter of seconds? As preteens, celebrities, President Obama, the Pope — and now, yes, even monkeys — jump on the selfie train, we may not think twice before uploading photos to Instagram or Facebook. But one filter we rarely consider is looking at the world through copyrights.

Monkeying Around

In the case of the mischievous monkey, the details are as follows: wildlife photographer David Slater traveled to Indonesia in the summer of 2011. While photographing a group of monkeys, he left his camera equipment unattended, and a curious female crested black macaque took several hundred photographs.

One of the best shots — the infamous self-portrait — got plenty of attention in 2011 and made it into Wikimedia Commons’ online collection. Slater asked that the image be removed, contending that the copyright belongs to him and citing financial loss as no one is paying royalties for use of the photo. (Even some of the editors have reportedly been divided.) Wikimedia asserts that since Slater did not take the photo he does not own the copyright… but then again, neither does the monkey.

Since Wikimedia Foundation is a U.S. entity, under copyright law, there is no basis to grant non-humans copyright privileges. Under the Licensing note at the bottom of the Wikimedia page, the annotation reads, “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.”

In a draft third edition of the Compendium of U.S. Copyright Office Practices, the Copyright Office outlines the monkey example in an update to the Human Authorship Requirement (Chapter 300). This section explicitly states that registered works must be created by a human being and lists types of works not protected under U.S. copyright law. Ineligible for copyright registration are works created by: nature, plants, animals and “purportedly…by divine or supernatural beings.”

(It is important to note that the Compendium is meant primarily for internal use at the Copyright Office and does not have the force of law. The third edition will also not take effect for several months.)

It’s evident the monkey doesn’t own the copyright to the infamous photo, but where does this all leave Slater? The curious macaque hasn’t marched to the Copyright Office, and it’s doubtful this motion will put an end to Slater’s fight. Some have questioned whether Slater has any artistic sway since he owns the equipment, developed the film, and staged the original photo shoot, but Wikimedia has made clear that the image has not been substantially altered enough from the original shot to constitute any artistic pull. Others have been curious whether British or Indonesian copyright law would render a different take.

Slater’s next stop? Likely a courtroom to get an official verdict.

Lessons From the Past

Copyright disputes involving photography are all too familiar, dating back to the 19th century. The seminal case in the United States involved Napoleon Sarony’s 1882 photograph of Oscar Wilde. Sarony, one of the first famed American celebrity photographers, took several shots of Wilde during his lecture tour of America. One of the photographs, identified as “number 18,” became the center of a copyright infringement dispute when the Burrow-Giles Lithographic Company distributed unauthorized lithographs containing the image. The case went all the way to the U.S. Supreme Court after lower courts awarded judgment in Sarony’s favor. In Burrow-Giles Lithographic Co. v. Sarony, the Court maintained that Congress could extend copyright protection to photography.

Sarony used to brag that he never even touched the camera, but instead just set the scene and composition. Subsequent case law has made clear that even a relatively haphazard shot is typically enough of a compositional choice to warrant copyright protection. Only a “modicum of creativity” is required to be worthy of copyright protection.

The Other Oscar

The epic Ellen DeGeneres selfie from this year’s Oscars garnered lots of attention (even crashing Twitter for a few minutes) and raised a few theoretical questions as to who really owned the image. Was it Ellen DeGeneres, who gathered the subjects of the image and staged the shot, or Bradley Cooper, who actually snapped the photo?

While Ellen and Bradley don’t appear to be taking this to court anytime soon, there are two schools of thought: 1) Under the broadest interpretation of the Copyright Act, whoever snaps the photo owns it; and 2) Whoever facilitates the creative composition owns it. If the two worked in conjunction with the intent that their creative efforts be combined into a single work, the photograph may be a joint work, owned equally by both Ellen and Bradley. Ellen sent the photo into the Twittersphere without a blink, but the scenario reminds us that the IP isn’t invisible.

A Glimpse Into the Future

In today’s world, where Google has embarked on a digitization program on a scale previously unthinkable without seeking permission from the relevant authors, likely knowing that it would have to litigate the matter later, copyright management is changing dramatically.

Today’s ever-connected media and technologies present new twists on core IP issues. Other recent activity has raised eyebrows in intellectual property and media circles, including the spate of copyright termination proceedings that only recently began under the Copyright Act of 1976, and Aereo’s attempt to retransmit broadcast signals online without a license.

While the days of iPads set forth new questions, the days of telegraphs and typewriters reveal answers. It’s only a matter of seconds and minutes before photos and information are shared, and the next case could emerge after the question, “Want to take a selfie?”