The Monkey Business of Copyright Law

Allison R. Imber, October 6, 2014

In the United States, copyright law protects original expressions that are fixed in a tangible medium, such as photographs, works of art, sound recordings, books, etc.  Generally speaking, the creator of an expression is presumptively the owner of the copyrights in that expression.  For example, the person who takes a photograph is usually the owner of the copyrights in that photograph.

Enter British nature photographer David Slater, who was taking pictures of crested black macaques, a type of monkey, in Indonesia.  During this time, Mr. Slater decided to let the animals experience the joy of taking selfies, and set up a camera that would allow them to do just that.  Hundreds of pictures later, one of the animals took a rather remarkable shot of another monkey as it was “smiling” at the camera.

Enter Wikimedia Commons, a U.S. company that runs Wikipedia and provides an online collection of free images and videos available for all to use.  Wikimedia Commons included Mr. Slater’s monkey selfies in its collection of free images and refused to remove them despite Mr. Slater’s protest, stating that Mr. Slater does not own the copyrights in the image because, simply put, he is not the one who took the picture.  Some have argued that this is inherently unfair, as Mr. Slater is the one who flew all the way to Indonesia, found the monkeys, provided and arranged the camera, and otherwise staged the scene.  However, the U.S. Supreme Court rejected the sweat of the brow doctrine, which provides that an author can obtain copyrights in a work through the author’s effort or “sweat of the brow” as opposed to original expression, back in the 1990′s, and Wikimedia Commons does have an appealingly straight-forward argument (the monkey did it).  See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

The U.S. Copyright Office has apparently decided to weigh in on the subject, as it released a draft of an update to its copyright regulations (scheduled to take effect in mid-December after final review) specifically spelling out that “a photograph taken by a monkey” and “a mural painted by an elephant” are not works eligible for protection because they are not works “created by a human being.”  This does not necessarily end the debate, though, as copyrights are territorial (as are all forms of intellectual property protection), and other countries can decide the limits of those rights for themselves.  Moreover, the U.S. Copyright Office was not specifically commenting on Mr. Slater’s case, so it is still possible he could take the matter up here.  What of the fact that all the monkey had to do was push the button on a camera that Mr. Slater arranged and posed?  What about cameras that are on a timer, or that are motion tripped?  Does no one own copyrights in those photographs?  Why isn’t the photograph at the very least a joint work between Mr. Slater and the animal, which would entitle Mr. Slater to have copyrights in the photograph?  Certainly if another person had pushed the button after Mr. Slater arranged the camera this would have been the result.  Preventing Mr. Slater from having any copyrights in the photograph whatsoever seems to put form over function, but that’s very well might be the way the cookie crumbles, at least in the United States.  If Mr. Slater decides to take Wikimedia Commons up on the matter in litigation, it will be interesting to see how the court handles all of the monkey business.