The Case of the Monkey Selfie

copyright-lawscopyright-law2 Here’s the story: back in 2011, this monkey gets hold of a photographer’s camera (there are multiple versions of how the monkey actually got the camera, so we will just state the fact we do know for certain – it ended up with the camera) and starts snapping pics of itself. The owner of the camera, David Slater, claims a copyright in the resulting photos and demands that Wikipedia take them down. So, who owns the pic? The owner of the camera, or the photographer (regardless of species) who actually took the picture?

Copyright 101 – the creator of the work owns the work. Period. By definition, this means the owner of the camera, Slater, can’t own the photos because he didn’t take them himself. In the case of the monkey selfie, that seems absurd at first, but there are several analogous examples in the business context where this analysis makes perfect sense. The more challenging question, let’s call it Copyright 801, is does the monkey own the pictures? How would that work? That is a much more difficult question, but despite Slater’s argument that “the monkey was my little assistant,” it was ultimately resolved by the U.S. Copyright Office. The bottom line: an animal, it seems, can’t own a copyright. In fact, for clarity, only a work created by a human is subject to copyright. So, in the monkey selfie case, no one owns these photos out right, and therefore ‘the public domain’ owns them. It’s unfortunate for David Slater. The monkey probably couldn’t care less.

This story leads one to consider, however, that the social media era has spawned a culture of those who prefer fame over fortune. We (in the general societal sense of the word “we”) prefer that our likenesses become viral (and therefore famous – even if only for 15 minutes) without giving any thought to whether someone should have material gain because they used their skills, talents, and abilities to create the image to start with.

This culture is what you see manifest in your Facebook feed all the time. Memes that are based on an image created by a single person for a specific purpose are repurposed an untold number of times without ever giving attribution (much less payment) to the creator of the image. Those repurposed images are what are referred to in the law of copyright as “derivative works.” But our culture has created a false doctrine that is not supported by the law. The culture where the creation is fodder for others enjoyment without compensation to the owner is becoming a new norm, and the law is struggling to keep up. Actually, the law is getting trampled. This trampling is incredibly obvious with pictures now. The Internet gives us instant access to millions of images that could be owned by someone and subject to a license. But with a single click of the mouse we can copy that picture to our computers and become copyright infringers. The law and technology collide once again.

So, back to the selfie monkey, should we feel bad for the photographer? This may likely be his most famous work – for which he gets credit (for 15 minutes), but no copyright. And because he doesn’t get the copyright he gets no royalties. This is why we can include this picture on this post with reckless abandon! But the question of how to fix Slater’s problem without creating an upheaval in copyright law is a vexing one. But we’re not inclined to think too hard about it. He has our sympathies. But, as we should all know, sympathies, once expressed, have done all they can do.

As an interesting side note – the copyright office has clarified that a work ‘created by the Holy Spirit’ is not copyrightable, but a work inspired by the Holy Spirit is. The Holy Spirit isn’t human and can’t hold a copyright. Similarly, a piece of driftwood ‘shaped and smoothed by the ocean’ is also not copyrightable – the ocean created the work, not a human.

The bottom line rule: The human creator of the work is the owner. This is the law. There are no exceptions for what seems fair or right or what should be the case in certain situations. Sorry Charlie, and sorry Mr. Slater.

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