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Who Owns the Copyright on a Monkey’s Self-Portrait?

When people ask me questions like “who owns the copyright on a monkey selfie,” I feel so full of…what’s the opposite of shame? Pride? No, not that far from shame. Less shame? Yeah.

Let’s examine this serious, important, and hilarious issue. Photographer David Slater was in the Indonesian wilderness in 2011 when a crested black macaque used one of his cameras and took a bunch of pictures with it. One of those pictures was the amazing selfie seen above.

Eventually the photo was uploaded to Wikipedia’s Wikimedia Commons. Slater filed a takedown request on the grounds that he owns the copyright in the photo. Wikipedia denied the request. Right now, the “License details” section of that photo’s page states: “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.”

I’m no expert in Indonesian copyright law, but assuming it’s similar to US copyright law, that sounds about right to me. Slater has no grounds on which to claim authorship of this photo. (Where I’m citing the law below, it’s US copyright law that I’m referring to, just for the purpose of this exercise.)

The U.S. Copyright Act does not have a definition of the word “author.” The U.S. Copyright Office website states: “The author of a work is responsible for its creation. Normally, the author is the person who actually creates the authorship being claimed. The only exception occurs when authorship is created as a work made for hire.”

Who was the “person” who created the photo? Slater? I don’t think so.

Let’s say I take your camera and create a photo with it. Do you own the copyright in that photo? If Walt Disney turns out to have created Mickey Mouse with a paintbrush that he found sitting around one day, was the owner of the paintbrush responsible for its creation? Does he suddenly have a big check coming his way? Of course not. I’m aware of no precedent in copyright law along these lines.

OK, so was the macaque the author? The U.S. Copyright Act also doesn’t define who or what is a “person,” but the Internal Revenue Code does, so let’s use that definition: “The term ‘person’ shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.”

This macaque, who is clever, charming, and highly photogenic, is not any of these things. (Please don’t make me define “individual,” you get the idea.)

So was the photo a work made for hire? Fast Company quotes David I. Greenbaum, a partner at the law firm Day Pitney:

If Slater wants to argue that he owns the photograph, a line of legal reasoning might be that he owns it because the photograph was a work-for-hire. Work for hire laws create automatic ownership for an employer when an employee creates a work within the scope of employment. The monkeys were employees given, among other factors, they were probably receiving remuneration in the form of food or other treats from Slater. With the employer-employee relationship established, and a liberal read of the language of the copyright laws, voila, we have an argument that Slater does, in fact, own the photograph.

This is all good fun, but I’m sure Greenbaum knows that this example doesn’t satisfy the work for hire test. The monkey wasn’t an employee of Slater (find me another example where a court has held that a monkey is an employee – is he entitled to overtime pay? Does Slater have to pay withholding taxes?) and this photo was not (quoting from the U.S. Copyright Office website yet again) “a work prepared by an employee within the scope of his or her employment.” Nor was this “a work specially ordered or commissioned for use” pursuant to an express written instrument signed by the parties. How would a monkey be able to give written consent to this type of agreement?

The bottom line is that there is no copyright here and the work is in the public domain. Not every work must have a copyright attached to it. Slater will have to live with the revenue from the sales of the photos he actually took.

Thanks to Buffy Seipel and Mark Evereklian for requesting that I write this blog post. May your selfies always be copyrightable.

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