Tucked into Wikipedia's transparency report yesterday was a tiny anecdote that involved the copyright of a photo. The story involved a selfie, a wildlife photographer, and a smiling monkey, so, quite naturally, it went on to light the content-starved summer Internet on fire.
Here's the short version: It involves wildlife photographer David Slater, who was trekking through the Indonesian wilderness in 2011, when a group of monkeys came upon him and his equipment. "At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection," Slater said at the time. "They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button."
A crested black macaque snuck off with one of his cameras and took, according to the Telegraph, "hundreds of selfies," most of which were blurry and unusable. Save for this: the pristine, in-focus beauty of a photograph of the female macaque's grinning face pictured above, which gave Slater a brief brush with fame and plastered the monkey's selfie on websites everywhere.
Inevitably, though, the monkey selfie was uploaded to Wikipedia in the public domain, and this is where things got less fun for Slater. He requested that Wikipedia take the photo down, claiming copyright; Wikipedia refused, arguing that the monkey took the shot, not Slater. It wasn't his. Now, Slater claims that unlicensed use of the photo has cost him tens of thousands of dollars in potential royalties, and he wants Wikipedia to pay up.
It all begs a very important question (one that could very well show up in law school final exams for years to come): Who actually owns the copyright to the photograph the monkey took of herself with Slater's camera?
Fast Company posed this question to several intellectual property experts.
"I'm on Wikimedia's side here," said Cyna Alderman, general council of the New York Daily News, in an email. "If you own a camera and someone else takes a picture with it, the photographer owns the photo, not the camera owner."
Of course, there's a caveat to this rule, as illustrated by the widely shared selfie Ellen DeGeneres snapped at the Oscars, which went on to be the most retweeted photo of all time. Some argued that it wasn't DeGeneres's property; after all, it was Bradley Cooper who pressed the shutter. However, since DeGeneres was giving the shot creative direction, a case could be made that the Samsung-sponsored selfie was, in fact, hers and hers alone.
Let's think about this. More often than not, professional photographers don't do the actual button-pressing during photoshoots. This much we know. She'll leave mundane tasks—the lighting, the coffee-getting, the shutter-pushing—to her assistants. Nevertheless those assistants are, in essence, carrying out the photographer's vision, and therefore, the resulting image belongs to her.
It's why Slater is now claiming—and I'm not making this up—that the monkeys in the troupe were his assistants, charged with carrying out his creative vision.
While unlikely to bear out in court, there is a sliver of hope for Slater if he chooses to go this way, says David I. Greenbaum, a partner at Day Pitney who works in the firm's intellectual property department. "If we read into the language of the copyright law, which requires a 'human' to create a work for it to be copyrightable, maybe this language could be interpreted to at least include primates," Greenbaum tells me in an email. "After all, there is a self-awareness and level of expression that primates have. Perhaps the drafters would have wanted the definition of 'human' to be stretched." He continues (emphases are ours, not his):
In this scenario, the monkey could own the copyright in the photograph. If Slater wants to argue that he owns the photograph, a line of legal reasoning might be that he owns it because the photograph was a work-for-hire. Work for hire laws create automatic ownership for an employer when an employee creates a work within the scope of employment. The monkeys were employees given, among other factors, they were probably receiving remuneration in the form of food or other treats from Slater. With the employer-employee relationship established, and a liberal read of the language of the copyright laws, voila, we have an argument that Slater does, in fact, own the photograph.
Bananas indeed! Arguing that the monkeys were his assistants, however, doesn't quite jibe with the aforementioned chaotic scenario that Slater described to the press originally in 2011. He may have already hurt his chances of squeaking out a victory.
"Other than bringing the camera into the vicinity, he didn’t add any of his own original creativity to the end result," Eve J. Brown, director of the Intellectual Property & Entrepreneurship Clinic at Suffolk University, writes to me. "Even if he did contribute original creativity to the photo, he would merely be a joint author with the shutter clicker (in this case, the macaque). In order to establish joint authorship, you need to show that the parties intended to be co-authors, meaning that it was their plan to merge their individual contributions into an interdependent part of a unitary whole. Usually this intent is shown with an advance written agreement, which I'm guessing Slater didn’t have with the monkey."
Again, merely owning the camera used does not give you explicit ownership of the images created with it. (The apparent lesson? Never let a monkey touch your stuff.) "Slater's best argument," adds Brown, "would be to list all of the original elements he added to the photo—developing it, enhancing it, cropping it—anything he did to contribute to the image that appears on Wikipedia."
All told, Wikipedia appears to have the upper hand here, and the infamous monkey selfie will continue to exist in the public domain, free for anyone to use and repurpose as they please.
The female macaque monkey could not be reached for comment.