In the summer of 2011, the infamous monkey selfie went viral. Nature photographer David Slater was shooting in North Sulawesi Indonesia when his camera was stolen by a female crested black macaque monkey. Curious about the seemingly bizarre contraption, the primate began pushing buttons, accidentally taking a series of selfies. Slater posted the photos on his social media only to find that they were quickly copied and posted throughout the web, including articles about the monkey selfies. Slater was not happy and began sending takedown notices to many of the alleged infringers. However, many of those takedowns were ignored responding to Slater that since he was not the one who took the photos, then he was not the copyright holder and so had no right to request removal. The blogosphere erupted with posts and comments posing the question: Who owns the copyright in a monkey selfie. Meanwhile, Slater has continued to request takedowns from various sites over the past three years.
Now the story is going viral again thanks to Wikimedia and a false report in The Telegraph. Wikimedia posted an update to its transparency report, explicitly discussing why the Macaque Selfie was not removed. The Telegraph’s Mathew Sparks wrote an article claiming that Wikimedia editors refused to remove the monkey selfie at Slater’s request because Slater didn’t own the copyright; the macaque holds the copyright.
The article is wrong. So its’ time to set the record straight, once again, and provide an analysis of the reasons behind Sparks, Slater, and the public’s misunderstanding of this issue.
Why is The Telegraph’s Article Wrong?
First, let’s look at Wikimedia’s and The Telegraph’s statements so we can see where Sparks went wrong:
Wikimedia – We received a takedown request from the photographer, claiming that he owned the copyright to the photographs. We didn’t agree, so we denied the request.
The Telegraph – Wikimedia, the non-profit organization behind Wikipedia, has refused a photographer’s repeated requests to stop distributing his most famous shot for free – because a monkey pressed the shutter button and should own the copyright.
The Monkey Selfie
On first glance, Sparks’ conclusion might seem logical; if the monkey doesn’t own the picture, then the photographer must. Unfortunately, that logic is based on a faulty premise. Sparks assumes only two possible outcomes, “if not A then B” but never considers that there may be an additional choice, “if not A, then B or C.” The extra possibility, C, is that nobody owns the photo; it is in the public domain.
Had Sparks done his due diligence, he would have seen that the Copyright Act explicitly addresses the issue of non-humans and copyright protection:
503.03(a) Works-not originated by a human author.
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable.
The Monkey Selfie Issue Highlights an Educational Failure
So why do Sparks, Slater and editors at The Telegraph all believe that Sparks’ conclusion is correct? Why didn’t anyone consult an attorney? Is it just lazy reporting or something deeper? The online magazine, Tech Dirt, suggests that the monkey selfie problem stems from the way those knowledgeable about copyright express that knowledge to the public. I am guilty of this myself.
Too often, when explaining copyright issues to the public, experts “dumb down” the analysis to bullet points or simple statements. We say things like, “Copyright is automatic. As soon as the photographer presses the camera shutter, he or she receives copyright protection in the resulting photo.” While the simple statement is easier to understand, it also has several negative repercussions such as people thinking that someone must own the photos, as in the case here or making people believe registration the Copyright Office is unnecessary. After all, if copyright is automatic, then why bother registering. Most people don’t realize that registration provides significant advantages. For example, only about 2% of professional photographers register their photos.
If the public learned the underlying concepts rather than a series of memorable disparate rules, they could analyze the legal issues for themselves. Sure, the law can be dry and uninteresting, at times. However, there are many who want to know more, like the readers of this blog. While Tech Dirt’s hypothesis may be correct, it can be changed.
Copyright Law, a Primer
So it is in the spirit of providing a broader depth of knowledge here is a short primer on a basic rule of copyright law.
Copyright protection is only available for original works of authorship, fixed in a tangible medium that has a minimal degree of creativity.
If something doesn’t have all three of these pieces, it is not copyrightable. So let’s parse out this statement.
First, not everything can be an original work of authorship? What might not fit this definition? How about facts? If a statement is just a fact, like the weather or a list of names, it is not an original work. It is not something that came from your creative brain. Nor is copying someone else’s work. That work is only original for its creator, not the one copying. Although, take that work and use it to make something else, and then it may rise to the level of originality necessary to receive copyright protection.
Fixed in a tangible medium means the work is not just in your head. Your artistic work has been put to paper or imprinted onto film, a digital sensor, or a computer memory chip. If the work must be tangible, then ideas that reside only in our minds, aren’t copyrightable. However, once you express the idea, by putting words on a page, painting on canvas, or doodles on a napkin, the expression of the idea will receive copyright protection. That’s why we can have two movies with the same idea, or artists copy particular styles. Your version of a Warhol will not infringe on a Warhol.
Finally, copyright requires some creativity, but more than some might think. Headlines, slogans, names, and titles will not receive copyright protection. Short phrases don’t rise to the level of creativity required. As an example, the Faulkner Estate sued Woody Allen for using the phrase, “The past is never dead. It’s not even past,” in the movie Midnight in Paris. The court dismissed the case concluding that the phrase did not rise to the level of copyright protection.
Now let’s put it all together in a hypothetical scenario. Imagine that you are at the Museum of Modern Art (MoMA) in New York City taking photos of people that are viewing Van Gogh’s The Starry Night. As soon as you click the shutter, you have created a copyrighted work. Why? First, the photo is original; nobody has that exact shot with those people, in those positions. Second, the photo has some creativity. You decided when to take the picture, what positions the people were in and the photo’s angle. Finally, the image was imprinted on the camera sensor, so it is fixed in a tangible medium. But now imagine walking up to the Van Gogh and filling the whole frame with the painting. That photo cannot receive copyright protection. It is not an original work; other people have exactly the same photo. And it is not creative, merely a reproduction of Van Gogh’s painting.
Now, having discussed the rule above; would the macaque hold the copyright for its selfie? Hopefully, you answered, no. 503.03(a) Works-not originated by a human author is part of the Copyright Act partly due to this answer.
Ok, now let’s take the analysis a bit further. If the monkey cannot be a copyright holder, then does that mean the copyright is held by the photographer, as Sparks and Slater think? Not likely. The photo is not Slater’s original work or a product of his creativity. He only owns the camera where the image is fixed. If the photo is not Slater’s, nor the Macaque’s we must logically conclude that the work has no copyright and is, therefore, in the public domain, free for anyone to use. Now (if you got this far) go back and read the Wikimedia statement. Do you think Sparks should retract his article?
One last point, this analysis is based on U.S law. For an analysis based on international law, see Can We Subpoena The Monkey?
Do you have a different take on the monkey selfie issue? Let us know.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.