Over the weekend, the popular radio program and podcast…
By now, you’ve probably heard of the macaque selfie, and the ensuing legal battle by British wildlife photographer David Slater to have the image removed from Wikipedia.
Slater’s camera was stolen by the photogenic macaque in Indonesia, who proceeded to take hundreds of selfies before the camera was recovered. After sifting through the images to find the best selfies, Slater posted the images online. Tomasz Kozlowski subsequently posted the images to Wikipedia, and then explained on Reddit “This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”
Wikipedia refused to remove the image and Chief Communications Officer Katherine Maher explained in a tweet:
— katherine maher (@krmaher) August 6, 2014
The incident brought to mind the “Ellen selfie” from the Oscars, and I asked a few legal experts to weigh in on the matter.
Fordham Adjunct Law Professor Britton Payne agreed that a non-human actor is ineligible for US Copyright protection. Here’s an excerpt from US Copyright Office’s Compendium II of Copyright Office Practices:
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.
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.
University of Maryland Law Professor James Grimmelmann concurs with the statute, “The monkey is not an ‘author’ under U.S. copyright law.”
But Payne challenges the notion of authorship stating, “The key here is ‘solely.’ The monkey shots were set up by a human. Think of it as a video camera, and the human chose which frames were important. They were the ones in which the button was depressed. If a video camera were knocked over by lightning, are the post-lightning frames authorless? Or are they authored by the person who set up the camera? I would argue they are by the person who set the camera.”
Ironically if a human stole your camera, and took a one-of-a-kind photo with it, the thief would technically own the copyright to those images. Grimmelmann explains, “An artist who steals paints and a canvas is still the copyright owner of the landscape she pains. Banksy has a copyright in his graffiti.”
And where is Wikipedia’s role in all of this? In its first ever Transparency Report, Wikipedia indicated that it received 304 Alteration & Takedown requests from July 2012 – June 2014. Additionally, they received 58 DMCA Takedown Notices, and complied with 41% of those notices. (Slater’s macaque image is specifically mentioned as a takedown request that was denied.)
Grimmelmann notes that companies served with a DMCA Takedown notice aren’t obligated to act upon them. “The only effect of ignoring a DMCA takedown notice is that it takes away Wikipedia’s copyright safe harbor. Wikipedia is always free to take its chances and ignore a notice. But if the image isn’t copyrighted in the first place, that’s a very safe bet.”
The current outcome is a blow to humans and a victory for the apes. So the next time a macaque tries to grab your gear, make sure to shout out, “Take your stinking paws off my camera, you damned dirty ape!”
Update: Leslie Burns astutely points out that US Copyright Law is irrelevant to a UK photographer working in Indonesia who had his camera stolen by a macaque.