While photographing macaques in Indonesia in 2011, British photographer David Slater’s camera was taken from him by one of his subjects. The macaque subsequently took hundreds of images, one of which in particular has become a viral hit on the Internet (see below). The image is hosted by Wikimedia Commons, a site affiliated with Wikipedia and dedicated to sharing public domain media. Wikimedia has rebuffed demands from Mr. Slater to take down the image on the grounds that Mr. Slater holds no copyrights in the image because he did not actually take the photograph in question. Slater disagrees, and the public dispute has been getting a lot of attention.

Macaca nigra self-portrait rotated and cropped

Wikimedia contends that non-human animals cannot own any copyrights because “works that originate from a non-human source can’t claim copyright.” Notably though, the topic of animal authors is not mentioned at all in the statutory text of the Copyright Act. The U.S. Copyright Office adopts the position that authors must be humans in §202.02(b) of its Compendium II of Copyright Office Practices. This text is a manual intended for Copyright Office staff. It is unclear what statutory provisions the Copyright Office relies upon for this position. If this position holds, the image would indeed be in the public domain and no copyright to it could be claimed.

Even assuming that there was some copyright to be claimed though, it is highly unlikely that Mr. Slater would be entitled to it. By default, copyright vests in the author of a given work. Here the monkey took the photo and would be considered its author. Unless a work is a “work for hire,” those rights remain vested in the author. A work is considered a “work for hire” if it is “prepared by an employee within the scope of his or her employment.” Here the monkey was not an employee of Mr. Slater, and so this doctrine would not help Mr. Slater. Also, any copyright assignment of rights must be in writing to be effective. There is no writing here, and it seems unlikely a monkey could even enter into a contractual agreement (much less one that was written and signed).

Mr. Slater appears to believe that he is a partial author of the image because he adjusted the camera’s settings before the camera was taken from him by the monkeys. This seems dubious though. At most it seems that he adjusted his camera’s settings to properly expose in the jungle environment. He had no role in composing the image, focusing on the subject, etc. All of the creativity here seems to lie with the monkey.

If the facts were different here Mr. Slater would have a stronger claim. For example, if he created a derivative work of his public domain image (e.g., one that was sufficiently altered/edited) and then only distributed the derivative work then he may have exclusive had rights in the altered image. Unfortunately for him though, the original image is freely available.

Read more about this story at the Washington Post.