Wikimedia rules that monkey, not photographer, owns media rights to a primate selfie

August 6, 2014 • 12:37 pm

Who owns the rights to a selfie snapped by a monkey? The monkey who unwittingly pressed the shutter button? Or the photographer who set it up owns the camera, and financed the trip to the monkey’s home?

I would have thought the latter: how can a monkey (especially a wild one) own rights, or benefit from them? But according to today’s Torygraph (via reader Hempenstein), a Celebes crested macaque (also known as the crested black macaque), roaming somewhere in the wilds of Indonesia, has the photo rights:

Wikimedia, the organisation behind Wikipedia, has refused a photographer’s repeated requests to remove one of his images which is used online without his permission, claiming that because a monkey pressed the shutter button it owns the copyright.

British nature photographer David Slater was in Indonesia in 2011 attempting to get the perfect image of a crested black macaque when one of the animals came up to investigate his equipment, hijacked a camera and took hundreds of selfies.

One particularly narcissistic monkey went wild with the camera:

“He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn’t worked that out yet.”

But after appearing on websites, newspapers, magazines and television shows around the world, Mr Slater is now facing a legal battle with Wikimedia after the organisation added the image to its collection of royalty-free images online. The Wikimedia Commons is a collection of 22,302,592 images and videos that are free to use by anyone online, and editors have included Mr Slater’s image among its database.

The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.

. . . The image has been removed in the past when he complained, but different editors regularly upload it once again.

“Some of their editors think it should be put back up. I’ve told them it’s not public domain, they’ve got no right to say that its public domain. A monkey pressed the button, but I did all the setting up.”

Slater now faces £10,000 in legal costs to recover his rights. And he’s got a good argument:

Mr Slater said that the photography trip was extremely expensive and that he has not made much money from the image despite its enormous popularity.

“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said.

“For every 100000 images I take, one makes money that keeps me going. And that was one of those images. It was like a year of work, really.”

This is the contested image of Macaca nigraYou have to admit that it’s really good, but Wikimedia is behaving badly so that it can display this thing without paying for it. After all, it was the photographer who made the whole thing possible and must have published the photo somewhere.

Much as I believe in animal rights, I can’t see them having artistic rights! Well, maybe an elephant that paints with its trunk, or a cat who walks on a keyboard and composes a piece, for they can benefit from their activities. But all this monkey did was press a button at the opportune time:

Macaca_nigra_self-portrait_(rotated_and_cropped)

Maybe I should ask Peter Singer about this. . .

168 thoughts on “Wikimedia rules that monkey, not photographer, owns media rights to a primate selfie

  1. Good. I expect that the monkey will now open a bank account, talk to lawyers about intellectual property, charge for use of the photograph….

    Er er hang on …

  2. Seems that Wikimedia should then ask the monkey’s permission to use the image. If the monkey doesn’t grant it in writing, well…

        1. That’s the one I’d go with. He gave it a banana, didn’t he? (Just nod). Work for hire, real consideration received.

          The bane of the photographer and what’s killed it as a business is flagrant infringment of copyright by organisations which know no ordinary person can afford to pursue legal remedies.

      1. OT, but that’s what I find confusing about photo journalism. Why aren’t the subjects in the photos compensated while photographers and publishers make money from the images.

        1. In Canada (& I think in the US), you typically get permission from people to use their image but if it is a crowd shot then they are just part of the crowd & you don’t need permission.

  3. Sorry, but how is Slater’s argument ‘but this trip cost me lots of money’ a good argument? The trip cost what it cost, regardless of what happened on it. That doesn’t change who took the photo or how. His lively hood hasn’t changed, just his exposure has. The risk photographers take for that ‘perfect shot’ hasn’t changed, just a monkey took a lucky shot.

    I’m certainly not keen to justify the monkey should have the copyright, but neither should Slater for just being there. Slater has already benefited from the exposure, but copyright? No. He did not take the shot, he did not set up the shot. His negligence in letting a monkey pick up the camera is not ‘artistic’. If he’d stated that was his whole idea to start with…MAAAAAYBE…but it wasn’t. It was blind luck. No one has copyright on luck.

    If the argument ‘but I was there and the equipment was set up’ is to be used, it would have to include any and all photographers assistants getting copyright on their photographers shots as well. Because they were there and set it up just as well. But they don’t. Because that’s silly. Sorry Slater, you got unlucky, but you’re not going to win this one.

    1. Thanks! I came here just to say that: how is the cost of the trip an argument?
      I’m not sure either who should have copyright. It depends on where the creativity lies. IMO it’s somewhere in between the setup and the monkey actively pointing the camera at itself and pushing the button.

      A setup with a trip wire (or something alike) leaves no creativity whatsoever to the animal being photographed, so in that case the one who set up the shot beforehand owns the copyright.

    2. Actually, the monkey took hundreds of images, not just one. So Slater had to select the perfect image. Not only that, but I don’t suppose what you see above is the exact image that came off the camera, for one thing, it’s suspiciously well framed. I’m sure that Slater must have done some post processing on it. I think he has a claim to the copyright.

  4. Well, in the US corporations are people, have free speech and just recently can claim to be religious as well. So it doesn’t surprise me that a monkey can have artistic rights. Though I do think the photographer should have the rights to this.

  5. No, Wikimedia believes that the photo is in the public domain. It does not claim the monkey owns it.

    Under copyright law, only persons, natural or legal, can own copyright. And, also under copyright, the person who takes a photo owns the copyright. The monkey took the photo, not Mr Slater, so he does not own the copyright.

    “However, as we explained in fairly great detail, looking at the laws of the US, the UK (where Slater is from) and Indonesia (where the picture was taken) the image is almost certainly in the public domain, no matter how you look at it.

    Under all three laws, the rules say that the work needs to be done by a person, and a monkey doesn’t count. Slater, however, claims that because the camera is his, it’s still his copyright. While that’s what many people think copyright law says, it’s not actually what copyright law says at all.”

    https://www.techdirt.com/articles/20140806/07044228126/photographer-still-insisting-he-holds-copyright-photo-monkey-threatens-to-sue-wikimedia.shtml

    1. Exactly! The only thing that Wikimedia is claiming is that the image is in public domain, i.e., no one owns the copyright. It is clearly NOT claiming that the monkey owns the copyright. So the article in Telegraph and many other places are misleading.

        1. How is that “misleading” when it is exactly what Wikimedia claims?

          Mistaken, maybe, but misleading?

    2. And, also under copyright, the person who takes a photo owns the copyright.

      IANAL but I find this (simple treatment of it) doubtful. If I set up a camera to take pictures at random or when hooked up to a motion sensor, those pictures are not public domain merely because the randomizer or motion sensor is not a person and I didn’t push the button. They are still mine, because the set up work I did could reasonably and credibly be understood to lead to the shot.

      Now if wikimedia is taking the view that the monkey is not a person, then it’s like a randomizer or motion sensor. It’s an unreliable bit of equipment to use to get a shot, but that’s what it is. So the shot’s ownership should go (IMO) to the person who did the set up that could reasonably and credibly be understood to lead to that shot.

      1. That’s not what the law says. The photographer claims to have put in literally no creativity – he just brought the camera to the location, and was surprised to find the photos afterwards. He literally claims no creative effort. Thus, no copyright – spending money and effort has been firmly found not to be sufficient to create a copyright in the US.

        You can keep posting over and over otherwise, but that you don’t understand copyright law does not make copyright work like you hope it does.

        1. If the photographer didn’t plan for this to happen in this case, I can see the argument. I was thinking the situation was more like cases where wildlife cameramen (and women) intentionally give access to cameras to animals, to see what they do with it.

          I guess the lesson learned here is to turn these items on before you hand them out, have them continuously stream video back to you, and reclaim it after the animal’s finished playing with it. For chimps and other very smart primates, you might have to put a ‘fake’ button on it and manipulate the LCD screen so that it appears to represent the shot, just so the animal thinks it took a picture.

          The fact that someone would have to go to such wierd and arcane lengths in order to justify a claim of intellectual property says, to me, that current copyright law is not a good fit to modern media capabilities and practices.

          Lastly, prior to this response I posted exactly once on the topic, so please dispense with “keep posting over and over again” snark in future.

        2. Thinking Wikimedia need to start drug testing or something. Granted I am no legal expert in the field of copyright but I always thought it was up to the legal system and courts to decide copyright law and not Wikimedia. I would think being it is the photographers camera, storage, transportation, editing and publishing that the photographer owns the image.

          I am thinking someone at Wikimedia has watched the Planet of the Apes shows and movies too many times. Do we need to check for signed release forms from all the monkeys? Even more alarming is Wikimedia seems to trump British and Indonesian courts.

          So, if the timer is used on a camera does the camera have a claim to copyright? Or the company that made the timer? I expect more from Wikimedia than this patent troll behavior.

    3. I understand that the case is not simple, but one should look at similar situations to get precedent. Wildlife photographers will set up trip cameras along animal trails to get pictures that are triggered by a passing animal. The animal also trips the shutter, taking their own picture. Are those pictures automatically in the public domain? I realize the human had more control in that situation, but it approaches what had happened in the present situation.

      1. “I understand that the case is not simple, but one should look at similar situations to get precedent.”

        Actually, it turns out that the copyrightability of automated photos isn’t all that clear cut, either. However, if you look at the example you provided, the camera owner set up the composition, and the conditions for the shutter to be tripped. Neither of those happened in this case, where by Slater’s own account, the monkey’s acquisition and subsequent use of the camera was unplanned by him. He didn’t set up the lighting or the composition, nor did he depress the shutter. He merely owns the camera. So this incident is easily distinguished.

        As an extra note in terms of US law (which isn’t necessarily controlling in this case):

        “503.03(a) Works-not originated by a human author.

        In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable”

        The monkey photo was in no way authored by a human author.

        1. That greatly clarifies the case here. Assuming the laws under this case are similar, then the photographer may well lose this one. 🙊

        1. You know, it occurs to me that it would have actually been funnier if I’d said “eventually we’ll have an argument over who owns the copyright of the high quality picture of Shakespeare.”

      1. …and my kids. Just watch a seven year old fill up 16GB of photos in an hour. A few gems in the dust. This is what we need mega-computing power for, besides monitoring the expansion of the universe (e.g., LSST) we need algorithms for mining great photos.

            1. Thanks even more awfully;-) Man am I glad that I am not dating in this world of selfies and texting, but then again I’d hope the guys in my age-group would not be doing this s**t.

              1. The mean things the narrator says about the girl in the club and everything else is so spot on. We’ve probably all known people like that. I had a friend that used to call them “Scoobie Doo bad guys”.

  6. Magnificent picture.
    You have to like the mischievous look in his eyes, the wrinkled cheeks, and opened lips.
    This macaque is obviously self-satisfied, having fun at the prank he played on the photographer.

    Irrespective of the rights aspect, it is doubtful whether the photographer could have got the same image by getting close to the monkey, or with a long lens.

  7. This seems to be a complete minefield. Suppose I was loaned a camera to take a photo of a loving couple and I discovered that photo later on the net…..

    1. You mean when people on vacation ask you to to take a picture of them using their camera?

      Under US copyright law, photos are copyright by the person who composes and takes the photo, not by dint of owning the camera. Otherwise you could loan your camera out to a friend and then claim copyright on all the photos he or she took, even though you didn’t compose or take the images yourself.

      The legal assignment of copyright is automatic, and occurs the moment the image is fixed in a medium (an SD card or the like, in this case). By statute there can be no implied or oral transfers of copyright, so you can’t legally argue that it was “understood” that the couple would own the copyright. Copyright transfers must be explicit and written.

      That all being said, I’ve not heard of a copyright lawsuit over a stranger claiming copyright over a couple’s vacation portraits.

      1. I wonder what happens if I set the settings on the camera then ask the person to take the picture. I had a part in creating that picture.

      2. Just because there can no implied transfer of copyright does not mean that they can’t be an implied grant of permission to make copies.

        1. “Just because there can no implied transfer of copyright does not mean that they can’t be an implied grant of permission to make copies.”

          IANAL, but it does seem that you could argue an implied copyright *license*. But, implied to what extent? If the photo won a cash prize (say there was a crashing plane in the background) would the couple get to keep the prize only having an implied license? Could they sell it to a stock agency? I would think the implied license, if applicable, would be limited, perhaps to non-commercial use, such as printing for friends or posting on FB, not to profiting of the image copyright by the person who took it.

          Bringing it back to the monkey, there is no implied license when the monkey takes a photo of itself. So Slater can’t avail himself of that argument.

          I hope Jerry will fix the headline of this post. We can all argue over whether Wikimedia should fight Slater or not. What is not debatable is the fact that Wikimedia does not assert that the monkey owns copyright.

          1. Upon further research, I think an argument could be made that the photo would be a work for hire, since the stranger is acting as an agent of the couple. See http://www.copyright.gov/circs/circ09.pdf.

            Regardless of who owns the copyright, the couple own the actual image since it’s in their camera, and the stranger could not exploit it without agreement with them.

            1. Do you have a precedent to this effect? There’s considerable precedent that without a clear transfer of copyright (i.e., a contract), no transfer occurs.

              1. Do you have a precedent to this effect?

                I was writing a comment on a blog, not a brief.

                As for works for hire, you are ignoring the case of employees, which, according to the cited pamphlet, is determined using the common law of agency.

                Also, kindly note that I said that it could be argued that the stranger was an agent; not that he was, beyond all question.

            2. “Upon further research, I think an argument could be made that the photo would be a work for hire,”

              Work for hire is actually a very narrow doctrine defined by statute and is a term of art. It is not just any circumstance where you pay someone to create something such as a photo. The very first part of the circular you linked to defines the circumstances the “work for hire” applies to regarding copyright:

              “a a work prepared by an employee within the scope of his or her employment
              or
              b a work specially ordered or commissioned for use
              1 as a contribution to a collective work,
              2 as a part of a motion picture or other audiovisual work,
              3 as a translation,
              4 as a supplementary work,
              5 as a compilation,
              6 as an instructional text,
              7 as a test,
              8 as answer material for a test, or
              9 as an atlas,
              if the parties expressly agree in a written instrument signed by them that the
              work shall be considered a work made for hire.

              .

              A vacation portrait taken by a stranger does not fit the above statutory definition of “work for hire” and therefore the doctrine does not apply. The statute is *specific*, and is applied legally on those specifics. When they say “employee” they mean it, as in actual employee, not a vendor.

              Work for hire sounds like it should apply in any circumstance where you pay money for a photo or video, but it doesn’t, as Walmart found out to its detriment. Walmart fired its long time audiovisual contractor, who, upon loosing 90% of their income, decided to find out a way to make some money. They decided to sell access to the videos they made for Walmart, including meetings they recorded. The videos were recored by employees of the AV contractor and were work for hire, work for hire for the **AV contractor**, and were thus copyright by the AV company, not Walmart. Walmart had no written transfer of copyright agreement with the contractor. This same situation applies when you hire a photographer to photograph your wedding. Absent a written transfer of copyright to the contrary, the photographer owns the copyright. He took them, and he is not your employee. Likewise, a person you hand your camera to is not an employee and there is no written transfer of copyright.

              1. Work for hire is actually a very narrow doctrine defined by statute and is a term of art. It is not just any circumstance where you pay someone to create something such as a photo.

                Obviously; that’s black letter law. I never suggested otherwise. But you omitted the bit of the pamphlet that said, “For copyright purposes, ’employee’ means an employee under the general common law of agency.” I suggested that in the situation under discussion the stranger was acting as an agent of the couple. If that is so, the requirement for writing does not apply, since the stranger was not an independent contractor.

                Look at it this way: Suppose the stranger had taken the camera, and, instead of taking the picture had thrown the camera at a passer-by, causing severe injury. Would the couple have been liable under respondeat superior? I bet they would be, especially if the stranger did not have adequate insurance and they did.

              2. “I suggested that in the situation under discussion the stranger was acting as an agent of the couple. If that is so, the requirement for writing does not apply, since the stranger was not an independent contractor.”

                Again, the document you yourself provided contradicts your argument. Employee does not refer to strangers:

                “The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire.

                A stranger asked to take a picture is not paid staff working within the scope of their duties. Nor does your conjecture meet any of the points of the cited SCOTUS guidance on what constitutes an employee for purposed of the copyright act. Also note that there is no consideration given to the stranger.

                If you can find case law saying a stranger who takes a photos is an employee of the camera owner for copyright purposes, please post it.

              3. A stranger asked to take a picture is not paid staff working within the scope of their duties.

                Sigh. You seem to be missing the point. If that pamphlet is correct that “employment” is determined by the common law of agency, then an actual employer-employee relation with wages and so forth is not required. If you walk up to a total stranger, hand him your car keys, and tell him to mail a letter for you at the post office, and if on the way he causes an accident; in many jurisdictions you are responsible for the accident, because he was your agent (in the others, the question doesn’t arise because liability is imposed just because it is your car). (Yes, it’s stupid to give your keys to a stranger, but that’s beside the point.)

                Nor does your conjecture meet any of the points of the cited SCOTUS guidance on what constitutes an employee for purposed of the copyright act.

                Actually, it does:

                1) “Control by the employer over the work.” The couple supplied the equipment, and determined when (now) and where (here) the picture was taken. They also controlled the general composition: “You stand there, we’ll stand here.”

                2) “Control by employer over the employee.” The couple controlled the schedule (Do it now), and the payment (none).

                3) “Status and conduct of employer.” This is less clear than the others, because the relationship is so short. But the couple are on vacation (I think that was the premise), and wanted a vacation snapshot, and this is a common way to do that.

                I have no cases, but you haven’t cited any, either.

                I have made my point, and will not continue this discussion.

          2. That scenario of something unusual is not that ridiculous. Recently there was a photo taken of some members of the Australian Hockey team ( I suspect that I had better say Field Hockey as if there is any other kind 😉 ) and it was photobombed by Liz ( as in Liz and Phil of Buck House). The photo went worldwide.

          3. We can all argue over whether Wikimedia should fight Slater or not.

            Fighting vigorously against fraudulent claims of copyright where none exists, such as this one, is very much within Wikimedia’s mission.

      3. The legal assignment of copyright is automatic, and occurs the moment the image is fixed in a medium

        Well that claim’s just fucking ludicrous. The Laws of Physics work like that, instantaneously and at all times and places, but in reality there is no quantum copyright field.

        1. Merely being fucking ludicrous doesn’t make it false. The law has no problems defying mathematics and logic, let alone physics, and copyright law is particularly egregious in this regard. Nevertheless, the statement you quote is in fact how things actually are legally.

          1. It seems entirely sensible to me. If copyright didn’t come into existence the moment the image is fixed (i.e. the moment the image is ‘created’), when else should copyright start?

            I think we should just be thankful it’s automatic, so we don’t have to spend time and money ‘copyrighting’ everything we write or do lest someone else claim it.

  8. Suppose Slater had brought his girlfriend along on that trip, and paid for her ticket, lodging, etc. And then the girlfriend picked up his camera and snapped a photo of the monkey. Would Slater be claiming rights to that photo? I don’t think so.

    Suppose further that he set up the camera on a tripod, aimed it, focused it, and then went to take a leak. And while he was gone, the girlfriend put her eye to the viewfinder, saw the monkey looking back at her, and snapped the shutter. That would still clearly be her photo, not his.

    So merely owning, transporting, and setting up equipment doesn’t confer ownership of the resulting photo.

    1. In US law, we meet the “prudent” person in many areas.
      However, in a lot of literature, one meets the rule of what the “decent” person would do. It is never explained what that concept is about, who invented it, in what cases it has been a decisive argument. It is always left implicit what the “decent” person would do, and who the decent person is.

      I have encountered the “decent” person argument more often in the British Economist than in any issue of Business Week or Fortune magazine.

      Is the “decent” person a British concept? And only the British know implicitly the profile of that “decent” person and the range of his/her preferences and choices?
      Has there been a manual ever written about the “decent” person that has force of rule in any area? Or is it just a pale shadow of some religious concept that is left unexpressed in the background?

      Daniel Kahneman, who has reviewed the work of some 500 experimental psychologists in the 1950-2010 period, never mentions any encounter of the idea of the “decent” person, nor any experiment to plumb the variety of his/her attitudes or choices, and no scholarly writing of any kind on “decency”.
      It seems that practically anything can be claimed by invoking “decency”, it’s all in the implicit ideas and biases of the claimant.

      If Wikipedia’s management is willing to make a public stand on this matter, they must think that they have a case. It would be of extreme interest to watch that dispute go to court, and note the decisions. They might be different in a British court and in an American one.
      Interesting case, anyway.

      1. If Wikipedia’s management is willing to make a public stand on this matter, they must think that they have a case.

        They may well have a legal case. But decency would dictate that they don’t use the tyranny of the law to deprive a photographer of (part of) his livelihood.

        Sort of the way that people still pay Peter Pan royalties to Great Ormond Street Hospital even though legally they don’t have to. That’s another example of decency.

        1. So, “decency” is nothing more than acting according to your own set of values, preferences, biases, or personal choices.
          In a free society, there are many avenues to express our “decency”.
          Every average person must have some little cache of “decent” values in his/her brain, which are acceptable to him/her or members of our own close group.
          “Decency” then seems to be a particular case of social morality limited to a very specific group where we belong, at the limit, a group of one, ourself.

          In this case, if we’re not back to a disguised version of classical Christian charity, everyone may have his/her own views on “decency”. In the same manner that everyone may have his/her own list of “Good Causes”.

            1. Umm. . . telling someone they don’t understand is close to uncivil. “You don’t understand” does not advance the conversation. Just give your conception of decency and don’t tell someone else they’re stupid, please.

            2. Because the “decency” concept you keep waving against Wikipedia fighting for its public domain rights seems to me to be only a British concept of unwritten rules of conduct — rules of “fairness”, “decency”, “right thing to do”, “Good causes”, and all the rest of British social rules — that can be learnt and absorbed only by growing up and living in Britain, and presumably learning the whole range of British rules in schools, probably public schools.

              It’s simply a cultural code of behavior and choices limited to a class of British people who are connected to the right social group where members spontaneously “understand” the concept of “decency”, “fairness”, “the right thing to do”, “Good causes”, etc. and all the rest of the unwritten upper-class British code.

              The American code of behavior is less so sharply defined, much wider, infinitely more varied and fragmented, but always more marked by the legal concepts that pervade the whole fabric of American social and cultural life. Speaking of “decency” does not win cases, does not get votes in the US. The mottos, slogans, and catchwords to live by and inspire other people to act are different — and how.
              We all hope that Wikipedia will win its case, as it should, for the sake of free diffusion of information (and that’s a rule that beats “decency” by a mile) in our secular society over the greed of individuals.

              1. Well, I’m a Brit. And I’m on Wikimedia’s side in this. I don’t think ‘decency’ comes into it, certainly not as defined by realthog.

                But then I regard the ownership or attempted control of information and ‘intellectual property’ by individuals or corporations to be one of the biggest threats to society.

              2. So are you saying that the US does not qualify as a decent or civilised country ?

              3. “We all hope that Wikipedia will win its case..”
                No we all don’t. I have major problems with Wiki, but they are OT here.

          1. You’re possibly right, but my own understanding has always been that it’s voluntary. If not, it’s an example of decency in the drawers-up of UK copyright law . . . 🙂

            The one time I was peripherally involved in the publication of a Pan-related book (and, decades later, I can’t now even remember what it was!), I think we all assumed that paying the contribution was “the thing to do”.

    2. “The copyright-law aspect may be hazy, but if the Wikimedia editors had any decency they’d go along with Slater’s request.”

      Why say that? Why presume that granting Slater’s assertion of copyright over a photo he neither composed nor took is the “decent” thing to do?

      Wikimedia relies on public domain copyright law. When people falsely assert copyright over public domain media, it hurts the public. Wikimedia is upholding the principle of public domain copyright law, law that both it and the public rely on day in and day out. If you read Wikipedia, you likely rely on the public domain that enables the massive collection of freely usable media on the Wikimedia Commons.

      Legal bullying and extortion over public domain media is a serious problem for creative artists, media organizations and the general public who use the public domain to create new works, to communicate ideas, and even for things like commenting on the internet. There is a general public interest in seeing public domain copyright law upheld, as Judge Poser recently noted when he upheld and award of fees for those who fought the Doyle estate’s false claims of copyright over the character of Sherlock Holmes (the estate had claimed that the existence of 10 stories not in the public domain meant that the *character* in stories that are public domain would remain copyright). Here is no different. Slater is trying to assert copyright over the public domain for profit, even though by law he does not own the copyright. One could just as easily, if not more so, say the “decent” thing would be for Slater not to falsely claim copyright over a photo he neither composed nor took.

      1. Why presume that granting Slater’s assertion of copyright over a photo he neither composed nor took is the “decent” thing to do?

        Because it just is.

        Listen to yourself. You’re harping on, legalistic fashion, about the letter of a law whose writers can never have considered the future possibility of selfies, let alone that monkeys might take them. The spirit of the law would seem on the side of the photographer, who set up and paid for the shoot.

        Legal bullying and extortion over public domain media is a serious problem for creative artists

        Spare me this. Do you have the first idea of the extent to which creative artist are being ripped off daily by an internet culture that assumes everything is in the public domain until it’s proven otherwise? Have you ever tried (as I have, dozens of times, to get your copyright work removed from sites that are virtuously “just sharing”? Spill your crocodile tears elsewhere.

        1. “Because it just is.”

          With that you have given up all pretense of rational argument. Asserting “Is to!!!” isn’t a valid or sound argument for your position.

          “Spare me this. Do you have the first idea of the extent to which creative artist are being ripped off daily by an internet culture that assumes everything is in the public domain until it’s proven otherwise? Have you ever tried (as I have, dozens of times, to get your copyright work removed from sites that are virtuously “just sharing”? Spill your crocodile tears elsewhere.”

          And here I think we get to the crux of your argument, such as it is, which is you are angry over **something else** that has nothing to do with public domain copyright law or what the actual law is in this instance. The problem say you have isn’t with public domain, but with copyright and DMCA claims as a valid author. Slater is not the legal author nor the rightful holder of copyright in the photo at issue, as you tacitly admit with your nebulous appeals to “decency” and your snarky vitriol aimed at those you disagree with.

          The Wikimedia foundation has an interest in defending the contours of the public domain from those who would falsely assert ownership of it. That does not affect your private right to enforce valid copyrights.

          1. I have expressed already my disagreement with you.

            With that you have given up all pretense of rational argument. Asserting “Is to!!!” isn’t a valid or sound argument for your position.

            I regard this remark as extremely offensive.

        2. realthog: Stop going on about ‘decency’. You are not the sole arbiter of what is ‘decent’.

          I also have my concept of what is ‘the decent thing to do’ but unless I can explain it to people, I wouldn’t expect anyone else to share it.

        3. All right, that’s the end of this discussion. I won’t have squabbling like children on a thread that could have rational discourse.

          You will both stop commenting on this thread now, please.

    3. Others would say that “decency” precludes claiming a copyright you really clearly do not own – the correct word for such an activity is “copyfraud”, making a fraudulent claim of ownership.

      1. That would be my point too. If Slater had any decency he’d admit that he had buggerall to do with creating this photo.

        He went off on an expensive trip, wasn’t careful with his equipment, got it stolen by a monkey, which then produced by far the best photo of the trip. Some photographer you are, Slater.

        The truth is, that photo would not exist if the macaque hadn’t taken the camera, pointed it at itself, and pressed the shutter. If that had been done by a human, that would be easily enough to own the copyright.

        Slater merely provided the camera – which, as has been pointed out – is not sufficient to claim copyright.
        So that’s that. Quite clear to me.

  9. I would think that David Slater processed the image—cropping it, and perhaps digitally altering it in ways that would make it his image, and hence capable of being ‘art’ that could be copywrighted.

    Or does copyright law work that way? There certainly is no other human who can claim the copyright. Slater is not stealing another human’s work and transforming it. But he, perhaps, is transforming the original image, at the least minimally by cropping it. Perhaps the image was also slightly rotated to make it vertical, and then was cropped to a rectangular form. Perhaps Slater could make a reasonable case that way.

    1. If that’s the case, then why can’t someone take any image, slightly crop it ‘artistically’ and claim the new image as copyright. That rabbit whole isn’t given much merit for good reason. Could you imagine!

      1. Basically anyone can, as long as the changes are more than trivial. Just what constitutes triviality I don’t know. The problem with doing that, though, is that you would be infringing the copyright of the original image, if there is one, so you don’t do it without getting into trouble.

        1. But all the copyright lawyers here have proved (to their own satisfaction) that there is no human copyright owner for the uncropped, unrotated, raw original image that came into Slater’s exclusive possession on the equipment he bought, maintained, transported and continued to control as he worked to make the image publishable.

          If he hadn’t told the story about the macaque taking the shot as a selfie (which I’m sure, in his estimation at the time, made the picture more impressive and valuable, not less) he would – of course – be the presumed owner.

          Can copyright lawyers prove the monkey took a selfie? It’s just hearsay! Slater’s own words, without any corroborative evidence being tested as far as I know, have been used to strip him of the property that he worked (yes, he did) to create. I’d be bloody annoyed too.

          1. I assume Slater at some point released the original unmanipulated image, in which he doesn’t have copyright. This seems to have been unwise of him. If he’d only ever released the processed image, in which he arguably does have copyright (this assumes his manipulation was sufficient to create a claim of copyright) then the controversy would never have arisen.

            Oh, and possession definitely does not confer copyright.

            1. … and after a bit more Googling I’m not sure my assumption above was correct. In other words I may have been talking rubbish, in which case I apologise. Certainly the images have been all over the Net.

    2. You are correct. Reproductions and derivative works are copyrightable, even if the original is in the public domain. Slater should argue that, while the original images in the camera might be in the public domain, the images that got distributed are either reproductions or derivative works. I would think that cropping and any other modifications of the originals would constitute sufficient originality to qualify.

      1. I would think that cropping and any other modifications of the originals would constitute sufficient originality to qualify.

        You’re probably wrong – these wouldn’t clear the creativity bar for US copyright. Bridgeman v. Corel.

        1. I am likely right. 1) Bridgeman is not binding precedent on anyone. 2) Bridgeman applies only to “slavish copies”. If there was cropping and so forth, the image is not a slavish copy.

          1. Saying it’s not “binding” precedent is technically true, but in practical terms it’s what everyone’s worked to since. Law is squishier than computer code, but it’s not that squishy.

            Do you have precedent for a crop being accepted as generating a new copyright? I note for example that restorations and retouchings have previously failed to be accepted as generating a new copyright, despite actual creative effort being put into them.

            1. Law is squishier than computer code, but it’s not that squishy.

              It is squishy enough that when the New Jersey constitution says that the court can make its own rules, subject to approval by the legislature, the courts can say that what it really means is that the court can make its own rules, not subject to the legislature.

              Do you have precedent for a crop being accepted as generating a new copyright?

              How about Bridgeman? “‘[A] very modest expression of personality will constitute sufficient originality.'” Quoting Nimmer.

              I note for example that restorations and retouchings have previously failed to be accepted as generating a new copyright, despite actual creative effort being put into them.

              Citations?

  10. Wikimedia clearly don’t believe the monkey actually has rights in the image, since they’ve unilaterally decided it’s “copyright free”. Surely if they did, they would have at least have attempted to clear their use with the monkey? This wouldn’t stand up in court for a second.

  11. The courts will rule in favor of whoever set up the camera and left it there. Monkeys have very few rights granted by the law.

    1. It’s not an either/or situation. Public Domain is a much more likely answer. A copyright doesn’t have to be granted.

  12. If I was a lawyer I would take this case pro bono on behalf of the money, er.. monkey (typo) and see to it that he was adequately compensated. Then bananas all around!

  13. “Wikimedia is behaving badly so that it can display this thing without paying for it.”

    I think accusing Wikimedia of bad behavior is very unfair. It is a manifestly royalty-free organization which has never been in the business of paying for or being paid to in return for intellectual property. It also has a very strong and strict system for removal of copyrighted material that inadvertently makes it to their websites, but they have often have to fight for their legal rights when they have (as has so often been the case) been unfairly hassled about copyright.

    1. “Wikimedia is behaving badly so that it can display this thing without paying for it.”

      I missed that when I read the article, and I’m a little surprised by it. How much, exactly, is Jerry paying to use the photo? If he did not seek in advance to pay to license it from Slater, does Jerry judge himself by the same standards he judges Wikimedia?

      I think this is a bit of an own goal on Jerry’s part. As a scientist, teacher and an excellent author, Jerry’s intellect is his living. So, it is understandable that he’d want to see authors compensated for their work, and has an interest in legal protection for his work. However, as a scientist, teacher and an excellent author Jerry also relies heavily on the work of others as the basis for his own work – the present is built on the foundation of the past. And when we make the past off limits or unaffordable expensive to access, we lose our ability to grow and create. So a balance between the rights of authors and of the rights of the public is vital to the prosperity of individuals, organizations and of the country.

      As author of this website Jerry relies heavily on exemptions and flexibilities of copyright, which allow him to quote other authors, and include photos, cartoons, video and other media he hasn’t paid or explicitly licensed. Whereas in the preferred world of copyright maximalists, as fought over in court cases and the US legislature, Jerry would be prohibited from doing any of that. Including a single photo on a bl*g from a news article on a court filing was the subject of multiple law suits demanding tens of thousands of dollars per infringement. There are multiple copyright lawsuits over quoting a short and banal poem on the websites of individuals and non-profits – the vexatious suits are industry for the poet who’s living is apparently built on getting people to quote the poem and then suing them over it. Merely *linking* to a website has spawned copyright lawsuits, as has quoting just the *headline* of a news article.

      Wikimedia is fighting to keep the public domain public. It is a fight that benefits all of us. The public domain, fair use, and other balances to government granted monopolies over the expression of ideas are things we all use on the internet everyday. Without them, the internet as we know it is dead, and we all go back to the walled garden, like Compuserve, or AOL before the web.

      It is Slater who is in the wrong on this. Just being lucky enough to have a monkey steal your camera doesn’t mean you get to claim copyright over the image. Tough break, but that’s the way the law is written. His claim of copyright over the public domain id just as wrong as when museums falsely claim copyright on classic, public domain art work in their collections (ownership of an object is not the same as ownership in copyright in that object – as with owing the camera the monkey selfies were taken with). Slater still retains copyright on all of the photographs he himself took. If he’s a good photographer, as I assume he is, surely he has many excellent photos from that trip that will pay for his efforts and expense. And the *publicity* of the monkey photos will help him sell them, unless he acts like a, well, I’ll skip that.

      1. +1

        I don’t see Wikimedia as behaving badly in this any more than the FFRF is in challenging a restaurant that gives discounts for saying prayers.

        (Mentions of the monkey’s rights are of course purely a red herring, that doesn’t come into it).

  14. I’m just a tad surprised since Wikimedia often goes for the most conservative possible construal of image copyright law in order to protect themselves from lawsuits, and otherwise cover their posterior.

    A few years ago there was a long controversy at Wikipedia over whether or not old publicity stills of various actors were public domain or not. Because of the ambiguities, WP opted to choose they were not unless the studio explicitly said so even though within the entertainment industry publicity photos are generally considered de facto public domain even if there is no official overtly stated release of them as such.

  15. I agree with Wikipedia’s position that the picture is public domain, not owned by Slater or the monkey. The monkey is not a legal person and Slater did not make any substantial artistic contribution to the monkey selfie. His ownership of the camera is all that he has on his side of the argument and it’s flimsy at best.

    I hope Wikipedia prevails, since we all would benefit from it. Bullying by “creative artists” who did not even “create” the art should be viewed the same way copyright and patent trolls are in abusing the system.

      1. I would think that blatantly fraudulent and overreaching claims of copyright where none exists, such as this one, make a mockery of copyright. c.f. effectively-perpetual copyright, the record industry, etc.

        1. I would think that blatantly fraudulent and overreaching claims of copyright where none exists, such as this one, …

          The only blatant fraud and overreaching claims here are those of WikiMedia.

          1. “The only blatant fraud and overreaching claims here are those of WikiMedia.”

            If you are going to make an averment of “blatant fraud” then provide some facts to support your claim. So far the legal analysis from experts in the field side with Wikimedia:

            “[Wikimedia are] on very firm footing on that one – though in our IP-engorged age, it may be hard for some people to accept the fact than anything useful/valuable/beautiful could come unencumbered by 100 years or so of copyright rights. If the monkey took the photo — and Slater is himself the source of the story that the monkey snapped the photo using his (Slater’s) camera — nobody owns the copyright”

            -David Post, Professor of Law at Temple University’s Beasley School of Law
            http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/06/just-another-monkey-copyright-story/

            ““It’s a great final-exam question for a copyright class,” says June Besek, executive director of the Kernochan Center for Law, Media, and the Arts at Columbia Law School. “Under the copyright law as it’s been interpreted, there has to be human authorship for there to be copyright. So I would say there isn’t copyright on the photo.””
            http://www.slate.com/blogs/moneybox/2014/08/06/monkey_selfie_who_owns_the_copyright.html

            …and so on.

            In light of those and other confirmatory opinions in favor of Wikimedia’s position, on what factual basis do you make your averment of “blatant fraud”?

            1. If you are going to make an averment of “blatant fraud” then provide some facts to support your claim.

              Ditto. Absolutely no evidence of fraud by Slater has been presented. At worst, he is wrong about the law.

              As to the quotes, none of them addressed the question of modifications to the original image.

  16. This is a different end to the string of argument that primates have “human rights”, against torture (in medical labs), being the victim of experimentation without consent, having their genital mutilated for some perverse sexual thrill for other beings entertainment, and all because they’re not people.
    But we know that human people would never subject other human people to such indignities. Because we respect the human rights of other humans.
    There was a case in Germany a few months back trying to get the right to not be tortured accepted as an inalienable right for humans and other higher primates. I think it got struck down, but I’m sure that the human rights for primates will be back.
    And yes, it is a “wedge” tactic. Deliberately and openly.

  17. This of course raises the question of whether an octopus can claim copyright when they snatch a video and continue to film with it. A quick search to find an incident of this at Island Bay New Zealand also dug up other similar incidents. A class action coming up?

  18. The photographs displayed in Google Earth, (with the possible exception of the “street view” photos) were taken by robotically activated spacecraft rather than by a person.

    Following Wikimedia’s argument (which I don’t dispute) it would seem that since they were not “taken by a person” they would likewise all be public domain as well.

    1. Given the nature of cameras these days a good argument could be made that all photos taken using them are in that sense taken by robots.

    2. Legal precedent is pretty clear that if you set up the robot, you own the copyright.

      In this case, the photographer claims he literally had no input beyond bringing the camera to the location.

      So the cases aren’t actually comparable.

  19. It is a remarkable thing, and yet, I think, self-evidently true, that we live in a world both where copyright violations are rife and at the same time, the public domain is threatened by the ever-expanding grasp of copyright law. Two recent events brought this in to sharp focus for me: a comic book artist issuing a copyright violation notice to a site which seemed to be to be engaged in absolutely classic fair use (see http://eschergirls.tumblr.com/post/93947596146/whats-been-happening-in-the-randy-queen-situation-and ), though the artist has since apologized, apparently, and the Court of Appeals for the Seventh Circuit (headquartered in our host’s own Chicago) not only ruling against the estate of Sir Arthur Conan Doyle with regard to certain Sherlock Holmes stories being in the public domain, but rather pointedly calling the estate’s business practices an extortion scheme ( http://blogs.reuters.com/alison-frankel/2014/08/05/in-sherlock-case-7th-circuit-spurs-war-on-copyright-extortionists/ ). I feel a little bad for the photographer in this instance, but the solution to copyright violations is not to invent copyright where none exists. I think the wiki folks have the better of this argument, as silly as it may seem.

  20. I’m with Wikipedia here. This is public domain, what happened to Slater is happenstance and not his effort.

    But all this monkey did was press a button at the opportune time:

    And “came up to investigate his equipment, hijacked a camera and took hundreds of selfies. … but not very many were in focus.”

    That is a lot of work. As a side note, if animals is going to be included in our extended family we can’t deny them copyright in the end.

  21. Wikimedia does not assert any such thing – please correct the headline.

    The actual law is:

    http://www.copyrightcompendium.com/#202.02%28b%29

    202.02(b) Human author.

    The term “authorship” implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.

    The photographer had no creative input into the photo, so a copyright doesn’t exist. US law is very strong on actual creativity being required for a copyright to exist – you don’t get it just by effort or money.

  22. Highly enjoyable post and the comments are quite educational since I knew little about photo copyright laws.

    I side completely with Wickimedia on this one. The photo belongs in public domain since the photographer had no part in setting up the shot. It took the monkey many tries to get that perfect shot and who are we to say weather or not that was his intention. Well done, Mr. Monkey and I hope in some way, shape or form, you are duly compensated for this public domain photo.

    Please excuse me while I change my Facebook profile photo ….

  23. Not reading all 116 comments above, but when I twe*ted this yesterday from the BBC website, I wondered if they could reproduce the image without permission of the copyright owner – the monkey. It will remain in copyright with the monkey & its estate for 70 years after the monkey’s death.

    Unless it is posssible to identify the monkey it becomes an ‘orphan’ work, but perhaps it also depends on copyright in the country where it was taken.

  24. As an afterthought, the whole issue of copyright is , er, ‘brought into focus’ by this image & its use. Copyright is so widely flouted even by academics & thouse who should know better.It is a mess – we want open access information (well some do) yet we also want to protect our work/research/publications.

    Dilemmas.

  25. Questions:

    If Slater is in sole-possession of a photo taken by a non-human primate, and he hasn’t yet shown it to anyone or published it anywhere (it exists only on his camera’s memory card, seen only by him and no other human), is it really in the public domain?

    If not, does Slater own the copyright, and what causes it to become public domain?

    If so, if you take a photo in the public domain and significantly process, edit, alter, rotate, &/or crop it, enhance contrast, color balance, & sharpness, etc, etc in Photoshop, does it remain in the public domain, or can you assert copyright ownership of the new altered image?

    If so, Slater would seem to have a case for his claim of copyright ownership. (I am assuming he did not release or publish the raw images) If you know much about photography, it is likely Slater, a professional photographer, did many, if not all of these things to that very clean, sharp, color balanced, perfectly cropped, level/squared photo tkaen by a macaque. I seriously doubt it was just a simple crop or even just a crop & rotate.

    Note: Restorations and retouchings generally don’t bring anything new to a work or enhance it beyond what was originally in the work, so they seem fundamentally different from artistic Photoshop processing of a raw photo.

    Scote: “Just being lucky enough to have a monkey steal your camera doesn’t mean you get to claim copyright over the image.”

    If that’s the raw image that resulted from the monkey’s action (which seems highly implausible), you may have a point, pending the answers to my 1st & 2nd questions.

    1. “I seriously doubt it was just a simple crop or even just a crop & rotate.

      The cropped and rotated version is a red herring. The uncropped, unrotated one is the one Wikimedia is hosting.

      “If Slater is in sole-possession of a photo taken by a non-human primate, and he hasn’t yet shown it to anyone or published it anywhere (it exists only on his camera’s memory card, seen only by him and no other human), is it really in the public domain?”

      Copyright is no longer tied to date of first publication, so it is irrelevant whether the image is published. Also, physical possession is different than ownership of copyright. Mere possesion of a an item does not confer copyright ownership.

      Slater was under no obligation to share the public domain monkey photos. But, once released, he has no copyright claim.

      However, as implied in your post, he did have the opportunity to make multiple changes to the image and claim copyright on the modified version while keeping the original, public domain photo un-released. That, however, is not what he did.

      The reason the photo is of such great interest is because of the provenance of the photo, because of the story of the monkey selfie. Since that is what makes the photos so popular, significant retouching or alteration would diminish that provenance.

      Perhaps ironically, the thing that makes the photo popular is also the thing that makes it public domain. But now Slater wants to profit off of the popularity by ignoring the “bad” aspects of the provenance (public domain because monkey selfie) and benefit from the “good” (monkey selfie!!!). The law is against him and he should try to find a way to use the extensive publicity to help promote his business and sell photos that he does own copyright to rather than attacking Wikimedia and the public domain.

      By Slater’s own account, the monkeys took hundreds of photos with a highly advanced autofocus camera. That one came out is utterly unsurprising, so skepticism that a monkey couldn’t have taken the photo is unwarranted.

      1. Also by Slater’s own account, the monkeys deliberately oriented the camera so as to view their own reflections in the lens. So this isn’t a random shot that by sheer luck happened to capture a grinning monkey face. The grinning face, properly framed, was the monkey’s intention, according to Slater. (Although obviously the monkeys didn’t know they were capturing permanent images of their facial antics.)

        To me this argues strongly for the monkey’s authorship of the image.

        1. “monkeys deliberately oriented the camera so as to view their own reflections in the lens.”

          I’d love to have a link. I haven’t had time to hunt down decent, in depth details.

          Note: Trying to view their own reflection would affect framing, not orientation. The image would appear properly oriented to the monkey regardless of how it oriented the camera. The orientation would be more likely the result of the easiest, most natural way to hold the camera due to its design. (easy to grip on sides as designed)

            1. I’ve read -that- article.

              No mention of deliberately orienting the camera, only mention of the monkey being “fascinated with his own reflection in the lens”.

              however, it occurs to me now that as an amateur photographer and engineer, I might be off tangent here, inferring “oriented” implies rotational orientation instead of just simply orienting the camera in any way so the lens faced the monkey.

              Also no details of how the photos were released and if the photos in question are unprocessed/edited. This is what I am now most curious about.

      2. “By Slater’s own account, the monkeys took hundreds of photos with a highly advanced autofocus camera. That one came out is utterly unsurprising, so skepticism that a monkey couldn’t have taken the photo is unwarranted.”

        That is your opinion. It is an opinion that I do not share. “Highly advanced autofocus cameras” can only do so much. I’ve now looked at two of the Wikipedia photos I don’t consider it totally implausible that the composition (no cropping or rotating) of the photos on Wikipedia could possibly be purely the work of the monkey, but it’s also the other elements I’m talking about, color balance, sharpness, etc.

        Frankly, I consider it far more implausible that a professional photographer published/released the photos without any post processing. However, argument from personal incredulity, even informed personal incredulity, isn’t especially good support for a position, and I’m still not totally clear on the exact means of release. I haven’t yet found an article that details that.

        RE: “That, however, is not what he did” Is it claimed that they (and any other relevant photos) are indeed raw, unprocessed/unedited/unPhotoshopped originals? If I have missed the fact somewhere that the photos in question are unprocessed (and thus, apparently, public domain), the proceeding paragraph is moot, and my questions have been answered.

  26. Um, no, Wiki hasn’t said that the monkey owns the copyright. The exact opposite, in fact. Wiki says that as only humans can legally own copyright, no one owns the rights to that photo. The photographer has been going around telling lies about “Wiki claims a MONKEY owns copyright!!1” in order to get attention.

  27. As others have said, Wikipedia is claiming sound Copyright law. The photographs were NOT taken by human hands, and only humans can own copyright. Since the photos are an act of nature in the most literal sense, these photographs are in the public domain. These are terms spelled out within copyright law.

    Wikipedia is VERY strict about obeying copyright law, and it is clear that their copyright lawyer knows what he/she is doing.

    To see the story from the other side, check out this article : https://www.techdirt.com/articles/20110714/16440915097/photographer-david-slater-claims-that-because-he-thought-monkeys-might-take-pictures-copyright-is-his.shtml

  28. I think Wikimedia is right here. The monkey took the photo but can’t hold copyright, therefore it would be public domain. The photographer had no artistic input on the image; the monkey took the camera against the wishes or intentions of the photographer. Just because he spent money getting there doesn’t mean everything that happened there is his work.

  29. It’s too late in the thread to be read, but it needs to be entered into the record: It looks like he’s been with that Jane Goodall tramp.

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