Self-portrait by a macaque. Photo via Wikimedia
This article originally published on VICE
Some old Greek guy once said that the law is reason, free from passion. If that old chestnut held up under scrutiny there'd be a lot fewer pissed-off humans hand-pounding license plates in our sprawling prison-industrial complex. This contradiction inspired us to repurpose an old Noisey column, Ask a Lawyer, to give us the opportunity to hit up one of our lawyer buddies and get him to drop the gavel on the weirdest legal issues of our stupid time. He'd only agree to speak with us anonymously. Enjoy!
Monkeys have a long and storied history of mischievous behavior. Curious George, Bonzo, that Nazi monkey from Raiders of the Lost Ark, and, more recently, some crested black macaque in Indonesia who grabbed photographer David Slater’s camera and started shooting #selfies in the jungle. When the photos were first released in 2011, they attracted a level of global attention that should make us all ashamed. The (admittedly very cute) monkey’s doofy grin was plastered on what seemed like every website in the world and even made the rounds on a number of national news programs. David Slater was happy. Presumably, he was making a lot of money off of that monkey and its impressive ability to capture the essence of what it was to be alive and a monkey in the Indonesian Jungle in 2011. Life was good.
But then Wikimedia, parent company of Wikipedia, uploaded the pictures to their library of public domain images, complete with a link to download hi-res files of the photos. The images have been uploaded and removed by different editors after Slater complained several times over the years, but he has finally decided to take legal action. “If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realize is that it needs a court to decide that,” Slater told the Telegraph.
That’s actually a pretty succinct explanation of Wikimedia’s position. On the images’discussion page one of the editors who uploaded the photos wrote that “This image was shot by a monkey who picked up a camera that a photographer had dropped” and was therefore not eligible for copyright. Most of the written accounts of the event seem to support the claim that the camera was “dropped” or “hijacked” by the monkeys. When the Telegraph wrote about the story three years ago, they said that “the crested black macaque hijacked the camera and started snapping away sending award-winning photographer David Slater bananas.” But yesterday, in a new video uploaded to that same publication’s website, Slater said "I wanted that one shot full in the face […] but it wasn't 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 meters 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 shots."
Is the photographer inflating his role in the photos, or did the monkey take the glamor shots on his own, without any prompting from the human? Does it even matter? Does Slater own the copyright, or is a photo taken by an animal in the public domain? For that matter, is a painting by an animal in the public domain? We asked a lawyer.
VICE: True or false: Traditionally speaking, the person or entity who presses the shutter button on a camera is considered the owner of the resultant photograph.
Anonymous Lawyer: Generally true. The creator of a photograph is usually the owner of the copyright in the photograph, unless there is a contractual relationship that assigns that copyright to a third party. For example, an employee can assign his/her photograph to an employer via an employment agreement in a “work for hire” scenario.
David Slater has said that "A monkey pressed the button, but I did all the setting up," which is like arguing that photographer's assistants should be able to claim ownership over all the images they helped create. Does that argument hold water?
Typically the person who pushed the button owns the copyright, absent any contractual relationship that may assign the copyright to a third party. Slater’s argument is probably more contingent on whether animals can own the copyright in a photograph under copyright law.
US copyright law says that "non-human authors" cannot hold a copyright. Is there a precedent for this case? Why would the non-human caveat exist?
I do not believe there is direct precedent under copyright law. Other areas of law, such as law related to wills and estates, typically recognizes that animals do not have the legal capacity to own property. Thus, if you wanted to bequeath personal property to your dog in your will, you would most likely need to bequeath it to a person who would take care of your dog, or you would need to make the dog a beneficiary. Applying that logic to this case, it seems as though animals would not be able to own copyrights.
Is there anything in copyright law that implies that if an image doesn't have a clear or "human" photographer that the image is the property of the camera’s owner?
I’m not aware of any precedent that suggests a photograph with no human photographer becomes the property of the camera owner, by default.
Would Slater have a stronger case if he had been intentionally trying to coerce the animals into taking their own photographs instead of them just picking up a stray camera that he had left unattended?
I don't think there is any legal precedent on point for that situation, but Slater could potentially argue that he was directly dictating the actions of the monkey and therefore he was ultimately responsible for the photograph, and thus he is the owner of the copyright. As if the monkey was a tool through which he captured the photograph. At the very least, he could attempt to pursue that chain of arguments.
These images were taken in Indonesia. Would they be subject to Indonesia's copyright laws?
If a copyright infringement suit was brought by a plaintiff, the relevant law would be dependent on defendant’s contacts with a particular forum, not where the photograph was taken. In this case, it doesn’t seem that either party had significant contacts with Indonesia to justify Indonesian law governing.
If Slater wins the case, would he be entitled to any money from all the publications that have used his image under the assumption that it was public domain?
Yes. Slater would be the owner of the copyright and would have standing to sue third parties who used the photograph without a proper license and without a proper fair use defense.
Wikimedia, in response to Slater's claim, has said: "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. This means that there was no one on whom to bestow copyright, so the image falls into the public domain." How substantially would an image have to be altered for someone other than the photographer to claim ownership?
Since the creator of a photograph typically owns the copyright, the third party would need to add something original to the photograph that would significantly alter the aesthetics, in order to try and claim ownership over those original elements that were added. Even so, the person contributing would have a difficult time claiming ownership over the photograph, but they could have a chance suggesting that they are entitled to jointly own the copyright.
Let's say, theoretically speaking, that someone owned the monkey. Would the copyright transfer to the monkey's owner?
Most likely not, because the monkey would not have the legal capacity to own the copyright, so between Slater and the monkey owner it seems that Slater would have the better claim to copyright ownership.
Do all artistic works created by animals reside in the public domain? For instance, does an organization like the Elephant Art Gallery have any legal ownership of or right to profit off of paintings made by elephants?
I do not believe that courts in the US have ever directly addressed this issue. There’s a bit of a factual difference between an animal pressing a button and a camera automatically taking a picture, and an elephant generating a painting on its own behalf—presumably it involves more free will on the part of the elephant. That said, the Elephant Art Gallery could try to claim that their human trainers trained the elephants to paint, and the painting process is an automatic recreation of the training. Thus, the elephants are part of the medium through which the trainers themselves are painting. Again, this would be a threshold issue as I don’t think it has been directly addressed under our current copyright regime.
In your professional opinion, do you think Slater has a case?
It seems as though he did contribute significantly to the capturing of the photograph. Since the monkey cannot claim ownership over the photograph, because it lacks legal capacity to own copyright, I would not totally discount Slater’s argument.
Our lawyer friend wanted us to tell you that these articles are for informational purposes only and do not constitute legal advice. They should also in no way be taken as an indication of future results and are not intended to create (and the receipt does not constitute) an attorney-client relationship. Whatever that means.
Neither Slater nor Wikimedia responded to a request for comment.
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