By Scott J. Sholder and Marissa Lewis, Attorneys at CDAS
“It’s been theorized that if you give a million monkeys a million typewriters, they will eventually produce the entire collected works of William Shakespeare. It’s been proven, however, that if a troupe of monkeys steals a camera, one will eventually take a really good selfie. By now you’ve probably heard this story, but just in case, the facts are as follows.
In 2011, British wildlife photographer David Slater traveled to the forests of Indonesia, equipment in tow, to follow and photograph the endangered crested black macaque species of monkey. According to news reports, during his trip, Slater set up his camera and tripod and briefly stepped away, and when he came back, a group of macaques had, in the words ofThe Telegraph, “hijacked” his camera, ultimately taking hundreds of shots. Many of the shots were, as expected, blurry or otherwise unusable, but several actually came out quite well, including a crystal-clear selfie of a female macaque showing off her large amber eyes and huge toothy grin. Slater sold the image to several publications, and soon the story – and the selfie – caught fire in the media, filling inches in the Guardian, the Telegraph, and the Washington Post, among other media outlets. The selfie soon ended up on Wikimedia Commons (owned by the parent company of Wikipedia), which is advertised as a repository of over 22.3 million free public domain images.
In early 2012, Slater asked Wikimedia to remove the selfie from its online archive, claiming that he owned the copyright rights in the image. Wikimedia complied, but when the image reappeared again later, Wikimedia had a change of heart, noting that works originating from non-human sources are not protected by copyright, and rejected Slater’s demands. In other words, Wikimedia took the position that because the selfie was taken by a monkey, Slater could not claim that he owned the copyright in the image. Slater claimed, and continues to claim, among other things, that his failure to press the shutter himself should not deprive him of copyright in the image, that the photographic equipment was his, that he spent considerable money on the equipment and on his trip to Indonesia, and that he not only “set up the shot,” but edited, processed, and published the selfie after it was taken. Slater is now considering taking legal action against Wikimedia in the United States, and this has given the story new life.
This scenario raises fascinating questions concerning copyright ownership of photographs. Under U.S. copyright law, ownership is determined, in the first instance, by authorship. Unless the work is a work made for hire, the author of a work is the original owner of that work, and remains the owner of that work unless another person or entity acquires ownership by a written and signed agreement. Here, the work-made-for-hire doctrine is easily ruled out: to say that Slater and the monkey were in an employer-employee relationship would be a stretch of the imagination. We can also confidently conclude that no combination of Slater, Wikimedia, and the monkey put pen to paper to effectuate a transfer of ownership. The owner of the monkey selfie must be the one who authored it.
The Supreme Court long ago defined an author as “he to whom anything owes its origin; originator; maker.” Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). In other words, the author is the one who had the “creative spark,” or made the “intellectual effort,” and caused the work to be created. So who is the author of the monkey selfie – Slater, the monkey, both, or neither? The question is not at all black and white, and leads to a number of other questions. For example: Can a monkey qualify as an “author” in the first place? Did Slater contribute sufficient copyrightable expression to be the “author”? How much significance should be ascribed to who pushes the shutter, who owns the equipment, and who expended the money and effort to travel and prepare for the shoot?
First, authorship traditionally includes a human element – some sort of intellectual effort or creative expression that only a human being is capable of. Although this notion has been challenged – most commonly in the context of computer-generated works – membership in the human race remains a prerequisite to copyright “authorship,” even if a non-human happened to “create” the work. In fact, both the current U.S. Copyright Office Compendium of Copyright Practices (Compendium II) as well as a draft of the Compendium III released August 19, 2014, state: “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being . . . [but] will not register works produced by nature, animals, or plants.” The drafters of the Compendium presumably had this very case in mind when they listed “[a] photograph taken by a monkey” as the first example of a work not eligible to register. SeeCompendium III § 306. It follows then that not only is the monkey not the author of the infamous selfie, but she cannot be an author either. In other words, the selfie cannot be a “joint work” because a joint work must be “prepared by two or more authors.” 17 U.S.C. § 101.
Because works that originate solely from non-human sources are not copyrightable and immediately fall into the public domain, if the monkey was the only “creator” of the work, then the selfie is in the public domain, and therefore free for anyone, including Wikimedia, to use. But this of course begs the question whether the monkey was, indeed the sole creator. Regardless of the monkey’s authorship status, Slater may be able to lay claim to be the sole owner of the selfie by virtue of his own role in the creation of the photograph before the camera was taken by the monkey.
That the monkey, and not Slater, snapped the photograph is not determinative. Fixation is a requirement for copyrightability, but the author does not necessarily have to be the one who does the fixing. Rather, what is crucial is that the author contributes creative and original expression to the work. In interviews, Slater has emphasized that he incurred considerable personal expense by purchasing photographic equipment and traveling to Indonesia, but U.S. courts no longer equate this “sweat of the brow” with copyrightable expression. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Likewise, that the camera equipment belonged to Slater is irrelevant; indeed, photographers often rent equipment, yet the ultimate owner of the equipment is not the owner of the photographs captured by the equipment during a shoot.
However, Slater may have a colorable argument that the monkey selfie was a product of his creative decisions. If Slater can prove that he made creative choices in setting up the shot, and that the monkey merely acted as a substitute for Slater’s hands when she stole the camera and clicked the shutter, then the question of copyright ownership may resolve in his favor. In fact, a professional photographer often acts as a kind of director – setting up a shot from a creative standpoint – and then has an assistant press the shutter. Lastly, like all professional photographers, Slater only published the “perfect” photographs, in which everything was in focus and the composition was pleasing.
This creative decision-making is the key aspect photographers should focus on when embroiled in a dispute over the ownership of a photograph with another potential author (human, ape, or otherwise). Rather than dwelling on ownership of equipment or expenditures of money or effort, photographers who are putative authors should readily be able to articulate how, for example, they chose the lens, focus, and filters, set up the camera, picked the location, determined the proper distance, angle, and time of day, framed the subject, adjusted the lighting and shading, set the mood, or timed the shot. Even after the shoot is over, photographers may alter the selected images for publication by making creative choices through cropping, rotating, editing, and otherwise enhancing or touching up the resulting shots using common image software, and should weave these potentially creative decisions into the story of their authorship in order to demonstrate maximum creative direction. Notably, the completed selfie could potentially be a derivative work, with Slater owning all the enhancements made in the final production, and Slater could copyright and register the newly added creative material.
Given all of the publicity the monkey selfie case has already garnered, it will certainly continue to be one to watch. Besides, one can never really predict what circumstances ultimately lead to interesting substantive rulings in copyright law, and it could be that one arises from the most unlikely of sources – a primate in the jungles of a Southeast Asian archipelago”
About Cowan DeBaets Abrahams & Sheppard LLP
For over 25 years, Cowan DeBaets Abrahams & Sheppard has provided legal counsel to leading media and entertainment clients. A boutique firm, it provides transactional services to the media and entertainment industry, handles all forms of copyright, trademark and media disputes and has a rapidly growing digital media and venture law practice.www.cdas.com