This is the amazing selfie in question.

Here's another photo snapped by the macaque. It is also a selfie.

Here is photographer David Slater, not holding the camera.

We Asked A Bunch Of Lawyers: Who Owns The Copyright To This Amazing Monkey Selfie?

Wikipedia? The wildlife photographer? Maybe even the monkey?

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.

[Photo by The Black Macaque, Camera owned by David Slater]

Add New Comment

13 Comments

  • Keith McDonald

    So, I am at the World Series and its the bottom of the 9th inning with two outs. I grab the camera belonging to a stranger sitting next me and I snap a picture of what should be the final play of the game without his permission while he is distracted. It turns out that a controversial call extends the game and changes the most likely outcome. After processing, the photo I took shows the call was obviously wrong and is sought by many publications. Should I get paid? Should publications just get to run the photo for free?

  • This has gotten silly. The human owns the copyright, and should be compensated for his work. He would do well to give a percentage, say, 25%, to the monkey for 'research' or whatever.

    If the zoo would like to go further, let them pay for the $7,000 DSLR's and train them how to use Photoshop. Heck, a sensor in the elephant cage could easily trigger a photo...

  • milankatic

    Lets find that monkey and charge wikipedia to give him tens of thousands of dollars.

  • Michael Hallmark

    "It all begs a very important question ...: Who actually owns the copyright to the photograph the monkey took of herself with Slater's camera?"

    Please Chris. It doesn't "beg the question" . Begging the question is a logic fallacy, not an unanswered question. If that is what you're trying to say, then write, "left unanswered is the question of copywriter ownership…"

    Better yet, leave the cliches alone altogether.

  • Jeffrey Malkan

    This situation is similar to a case where a security camera takes sequential pictures randomly and automatically. If such a camera captured any image of value, the copyright would belong to the person who put the camera in place. It is also similar to the "monkey cam" that David Letterman used to joke around with years ago. Letterman had the idea of seeing the studio from the monkey's point of view. A monkey cannot own legally own property (and a copyright is property), but merely owning the camera isn't enough for a human to claim copyright either. The copyright owner would be the human who put the camera into a position where the pictures could be taken. The "originality" of the pictures would come from that human because he or she would be their "origin."

  • Välinen Vesa

    I still don't get how the not-copyright-owner can have total control over publishing the picture. Which obviously is the case since it's on his memory card... Can a law get any dumber? What happens in a dispute? The equipment owner is forced to post-process the RAW file? He's forced to let the shutter presser in his home to do the post processing? What if he doesn't have a functional computer? Stupid, stupid, stupid...

  • robb.erickson

    If a monkey can own the copyright for a photo I suppose we should also start getting a monkey's signed consent before any wildlife photo shoots. Also, for all you employing hamsters as un-paid interns you may want to reconsider as there is currently considerable backlash from the intern community involving fair compensation.

  • kmeenaghan

    I've worked in commercial photography for 20+ years, and it is by FAR the exception when someone other than the photographer presses the shutter. Assistants often shoot background plates or additional coverage, but most photographers shooting animated subjects press the shutter themselves. Just sayin'!

  • other

    This is easier than people are making it out to be. First, monkeys or other non-humans cannot hold copyrights. Second, if Mr. Slater's camera is setup to include his copyright information in the EXIF data for the picture, he is presumed the copyright holder, and it would be up to Wikimedia to mount a legal challenge. In this scenario, it would be very easy for Mr. Slater to assert his rights and obtain a judgment against Wikimedia. Furthermore, said judgment could only get larger as time rolls on. It would be best if Wikimedia would drop their asinine claim.

  • Martin Johnson

    You are clearly not paying attention here - Slater is making the claim not Wiki. They are simply asserting that although it was Slaters camera, he did not take the picture (it is a selfie!) so he can't claim it as his own and therefore royalty cash. What EXIF data there is on the camera is pretty much irrelevent. If I own a camera and my brother uses it without altering the settings I still can't claim it as my photoshoot, no matter what the camera data...