The twists and turns of copyright law are arcane at the best of times, especially when digital images are involved, but it’s not often that the debate over ownership rights turns to whether a crested black Macaque monkey from Indonesia can own the copyright to a photo she took of herself. But that’s exactly what was triggered by a recent article in The Telegraph, in which the camera’s owner — wildlife photographer David Slater — claims that his request to have it removed from the open-source Wikimedia Commons library was denied because Wikimedia’s editors believe that the monkey holds the copyright to the photo.
That’s not strictly true, however. In fact, the editors at Wikimedia (which manages the library of more than 22 million images and videos associated with the open-source encyclopedia) rejected the photographer’s demands because they believe that no one holds the copyright. A monkey can’t hold the rights to an image — or anything else, for that matter — because they aren’t human, and therefore don’t have the legal standing required to do so.
Tomasz W. Kozlowski (@twkozlowski) August 06, 2014
This particular story began in 2011, when Slater went to Indonesia and was taking photos in the jungle. The female Macaque monkey in the pictures got hold of one of his cameras and took hundreds of shots, and Slater subsequently sold the selfie photo to a number of different publications. The legal battle with Wikimedia began when he asked the organization to remove the picture from its library and was stonewalled — and that back-and-forth ultimately showed up in Wikimedia’s report on takedown requests. Slater told the Telegraph that the organization is infringing on his right to make a living:
“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away.”
But even if the monkey doesn’t own the rights to the photo, shouldn’t the photographer own the rights, since it was his camera the monkey used to take the picture, and he did the editing and publishing of the photo? That may seem obvious, but nothing about copyright law is obvious, and legally speaking Wikimedia has a strong case that no one actually owns the rights to the picture.
We’ve actually been down this road relatively recently, although it didn’t involve a monkey: after a “selfie” of a group of famous actors went viral on Oscar night, breaking the record for the most retweets on Twitter with 3 million or so, a debate began over who owned the rights to this suddenly iconic image. Was it Ellen DeGeneres, whose camera was used? Or was it Bradley Cooper, the actor who actually snapped the photo?
According to copyright law, the person who creates the picture is the copyright owner (unless he or she is acting as an official “agent” for the photographer, under a so-called “work for hire” arrangement). As an entertainment lawyer explained following the DeGeneres photo, when copyright law as it applies to photography was formulated, cameras were relatively complicated and the courts likely didn’t imagine a day when everyone would have a camera in their pockets, so they gave the rights to whoever pushed the button. Under U.S. law, if a “natural person” is not the author of the work, then it is considered anonymous.
According to comments that Slater made to The Telegraph, the photographer may be considering a legal challenge of the Wikimedia Commons decision, so we may get more official confirmation of this point eventually (and there is still some debate about the DeGeneres photo, even among copyright experts). But until then, the editors at Wikimedia appear to be on fairly firm ground.
Post and thumbnail images courtesy of Wikimedia Commons