British Photographer, Indonesian Macaque, American Website: Copyright Ownership Dispute Over Monkey Selfies

From the above clip of British wildlife photographer David J Slater, it is clear that Slater is strongly considering taking legal action against Wikimedia for copyright infringement in the now infamous “monkey selfie” photographs.
In the clip, Slater explains how the photographs came about by saying:

After a three day exploration of a forest in North Sulawesi, Indonesia, the monkeys followed me around, I followed them around, they got too used to me, eventually they started grooming me, touching me – it was an amazing experience. I still wanted that one shot, that one shot full in the face, just for my self satisfaction and to give it to an agent and therefore I could promote the conservation issue. But it wasnt going to happen not unless they took the photograph themselves. And I did that by setting it up on a tripod with a cable release, walking a few metres away, allow them to come in watch their own reflections, play with the camera, play with the cable release and bingo, they took their own shot.

Wikimedia, the US-based organisation behind Wikipedia, has refused Slater’s repeated requests to remove one of the monkey selfie photographs which is used online without Slater’s permission, claiming that because the monkey pressed the shutter button no one owns the copyright. Wikimedia is reported as saying:

We take these requests very seriously, and we thoroughly researched both sides of the claim (….) When a work’s copyright cannot vest in a human, it falls into the public domain. We believe that to be the case here.

If Slater decides to take legal action against Wikimedia, he has the option of suing under the copyright laws of the United States, United Kingdom or Indonesia. The central issue for determination would be whether Slater can claim authorship and/or ownership of the monkey selfies? A quick perusal of US Copyright law appears to automatically rule out any copyright claim by a non-human author. According to the rules published by the US Copyright Office:

503.03 Works not capable of supporting a copyright claim.
Claims to copyright in the following works cannot be registered in the Copyright Office:
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.

Under both United Kingdom and Indonesian copyright laws, the definition of an author refers solely to “a person” therefore non-human authorship is not possible. In the Kenyan context, this blogger has discussed the question of non-human copyright authorship here and here.
Nonetheless, as an amateur photographer (see here), this blogger appreciates the enormous amount of time, skill and effort expended by Slater which resulted in the monkey selfie photographs. Therefore, this blogger argues that, by affording some copyright protection to Slater, the courts would be greatly incentivising him and other photographers to carry on the arduous task of photography.
One possible middle-ground solution which ensures that Slater is incentivised for his undeniable role in the monkey selfie photographs is joint authorship. According to the US Copyright Act 17 U.S.C. § 201(a): “Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co[o]wners of copyright in the work.” Further, Section 101 provides that “[a] ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”.
Therefore, in the present case, the court could find that the monkey selfies were works of joint authorship between the macaque monkey and Slater. This would then allow Slater to exercise economic rights over the works of joint authorship between human and non-human authors.

  1. jchebet
    Vic, on this please! Joint authorship? Really Victor? I don't think it would pass in the US law you've talked of. And more familiar to me,under Kenyan law, copyright ownership by the monkey would not arise because invariably the 'person who makes the arrangments' of taking the photograph would be human,notwithstanding an 'automatic' shoot (the way you can set up the camera with a timer and it auto-takes the pic) or a shoot such as this one by a now famous monkey.
    • Bona vacantia, seriously?
      Bona vacantia, seriously?
      You seem to be arguing in support of Slater's claim of authorship/ownership whereas most IP scholars seem to be arguing that the selfies are in the public domain. Victor's reasoning is premised on the legal fiction that non-human (co-)authorship ought to be allowed under copyright law so as to dispense with Wikipedia's argument that it was not Slater who took the photograph. The question to be answered is whether or not this putative authorship and putative intention to collaborate with Slater in the taking of this photograph causes undue violence to copyright law :-)
    • vnzomo
      Lol @ Chebet. I know its a stretch but it's a necessary one, methinks.
  2. jchebet
    Victor, do you think the monkey (had this been in Kenya) would have been the 'the person who is responsible for the composition of the photograph'? In that definition of the author of a photo,I think its alluded that the author =a person, and that that person is not necessarily the person who pressed the shutter button.
    • Mona Lisa, meet Black Macaque.
      Mona Lisa, meet Black Macaque.
      The concept of non-human authorship/ownership is largely untested under both US and Kenyan copyright laws. Again, ‘the person who is responsible for the composition of the photograph’ cannot be said to be solely Slater since the monkey's active involvement in positioning and adjusting the camera is what makes the selfies so unique and remarkable.
    • vnzomo
      Chebet, this issue of non-human selfies under our copyright law is interesting: work of joint authorship? work for hire? anonymous work? All these 3 scenarios are arguable; ultimately it comes down to a question of what evidence does Slater have to support his claim to authorship/ownership...
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