Authorship, Monkeys, and Copyright Law

Who owns the copyright to an image or other work of art enabled by a human but created by an animal? Answering this seemingly obscure question recently became a pressing matter to British wildlife photographer David J. Slater. In 2011, Slater traveled to Indonesia where he photographed crested black macaques. While he was in the field, the curious macaque snatched his camera and took hundreds of photos. While many were blurry, the monkey’s photo shoot produced several outstanding images that went viral on the internet. Wikimedia Commons, a U.S. based website which hosts images in the public domain, recently added these “monkey selfies” to its online collection, contending that because Slater did not take the photos, he does not own their copyrights. Wikimedia further contends that, because works that originate from a non-human source do not have a claim to copyrights, no one owns the copyright to the photos and they are in the public domain.

The dispute between Slater and Wikimedia is ongoing, and perhaps headed to litigation, highlighting the intersection of digital media and current copyright laws. Would Wikimedia take a different stance had Slater orchestrated a monkey photo shoot by setting up his camera in an enticing way, hoping the monkeys would take the bait and click the shutter? US copyright law requires authors to have created their work thorough their own creativity. Perhaps the orchestrated photo shoot would rise to this level of creativity, and Slater’s hand in creating any resulting photographs would be enough to afford him the copyrights of the images. The monkeys snatching his camera and managing to find the shutter button however, excludes Slater from the creation process. That he happened to be in the forest and left his camera unattended around a curious group of primates is not enough.

As for the monkey, Wikimedia contends that she does not own the copyright either, as she does not have standing to do so. One of the primary goals of copyright law is to protect and reward creativity, thereby promoting creation of literary and artistic works. Arguably such incentives will not motivate a monkey to continue taking exceptional selfies. The effects of Slater’s dispute with Wikimedia on wildlife photographers and other artists who rely on animals or other natural sources to control a portion of their work remains to be seen.