Legal Head Scratcher: Does Whoever Controls the Shutter Button Control the Copyright?

August 12th, 2014. By LucyC

Don’t think there’s a lawyer on this one (yet) but talk about a case where you really have to figure out when a person is a person (no matter how small?—couldn’t resist…).

So, who saw this coming? The monkey, perhaps? An Indonesian monkey took a selfie with a wildlife photographer’s camera, and it’s raising some interesting copyright law questions, specifically—who owns the image?

David Slater, the British wildlife photographer whose camera was used by the monkey while he was on assignment in 2011, believes that he has ownership of the image. The backstory—he was setting up his camera equipment to photograph a crested black macaque monkey, according to The Huffington Post, when the monkey grabbed Slater’s camera and began taking photographs, including a pretty good selfie.

Of course the selfie is posted online and goes viral (wonder if Monkey has a Facebook page?). Not surprisingly, Slater assumes he owns the copyright to the selfie. Uh, apparently not, according to Wikipedia.

What?

Yes—Wikipedia has posted the picture on its site as well as on Wikimedia Commons, an arm of the Wikimedia Foundation that posts photos that are in the public domain and therefore free to use, the Huff Post reports.  When Slater requested that Wikimedia take the photo down, arguing that the copyright belongs to him, and that he should be paid for the use the photo—every time it’s used—as is normally the case—Wikipedia said—“No”—won’t take it down, can’t make us, the picture belongs to everyone.”

Wait just a banana-picking moment there sunshine…

HuffPo spoke with attorney Josh Bressler, who specializes in intellectual property law. He said the “author” of a photograph is the person who has “contributed the expressive content.”

The nitty gritty, according to Bressler, is that a monkey is not considered a person under the law, and only a person can be an “author.” Legally speaking, only humans and corporations are “people.” Animals, on the other hand, are considered property, not people.

Hence Wikipedia’s stance. Wikipedia spokesperson, Katherine Maher, emailed the following statement to HuffPost:

“We take these assessments very seriously, and researched both sides of the argument. We didn’t think the monkey owned the copyright—instead, our assessment was that there’s no one who owns the copyright. That means that the image falls into the public domain.

Under US law, for example, copyright claims cannot vest in to non-human authors (that is, non-human authors can’t own copyrights). It’s clear the monkey was the photographer. To claim copyright, the photographer would have had to make substantial contributions to the final image, and even then, they’d only have copyright for those alterations, not the underlying image.

Because the monkey took the picture, it means that there was no one on whom to bestow copyright, so the image falls into the public domain.”

But the monkey couldn’t have taken the picture without Slater’s camera—doesn’t that count as a significant contribution? And, btw, if animals are deemed as “property” then where’s the monkey’s owner? Does that person—I guess the island of Sulawesi?—technically “own” the image?

And ok—this gets better—so when you’re out at a bar—it’s happy hour and your sober friend takes pics, on your camera, of you and your bud’s sloshing back a few and making idiots of yourselves, the pics are on your camera—but you, being too drunk to actually take a groupie yourself, didn’t take them. In theory, your sober friend ‘contributed the expressive content’, right? So when the pics go viral via Instagram, do you have any claim to them? Things that make you go hmm…

Well, in this case, Slater reportedly spoke with HuffPost, stating that he is “aggrieved” by the situation and is urging people to stop using Wikipedia. He thinks the editors at Wikipedia “have a communistic view of life.”

“It’s potentially being run by people with political agendas,” Slater said. “The people who are editing it could be a new Adolf Hitler or a new Stalin … They’re using whatever suits their agenda.”

I’d say he’s pissed. As a creator myself, I can’t blame him. In our digital age, where copyright is a very hot commodity and one for which FB and the likes are prepared to risk hefty lawsuits, you have to love the irony here. Copyright is big bucks. So—if the picture belongs to everyone—i.e. the public—does the public also stand to profit by it?

Tags: Copyright Law, monkey selfie

This was posted on Tuesday, August 12th, 2014 at 2:25 pm and is filed under Crazy Sh*t Lawyers See, Emerging Issues . Feel free to respond, or trackback. Read our comments policy.