Legal Geek No. 20: Copyright Monkeys

Welcome back to Legal Geek. This week, we take a look at this week's hot copyright controversy, that being whether a photographer has rights to shots taken by a monkey with his camera.

https://archive.org/details/LegalGeekEp20

Back in 2011, British photographer David Slater spent a great deal of time and money taking a wildlife photography trip to Indonesia. During this trip, a pack of monkeys, specifically crested black macaques, grabbed one of Slater's camera and ended up taking hundreds of pictures. A couple of these pictures ended up being good looking selfies, which made for a great story and a good selling photo for Slater.

However, the Wikimedia Foundation has this week refused to delete the photos from wikipedia, arguing that there is no valid copyright in the images. Essentially, Wikimedia argues that the only authorship of those photographs was by the monkey itself, and copyright law does not protect or grant rights to non-human authors. Thus, the photo is allegedly in the public domain. But is this true?

I agree with most copyright experts that U.S. and European copyright laws provide rights to creators of works of authorship only when the author is human. The problem for Slater here is that he did not add anything to the monkey selfies, he did not frame or arrange the shots and did not alter them or improve them upon bringing the photos back home. The author of a photograph is the one who snaps the shutter, absent some of these other possible additions to the creative expression or work. Slater did not add anything here, and so if there could be a copyright, it would be owned by the monkey, which is impossible under current laws.

Granted, this is a bad situation for creative types like Slater who spend thousands of dollars trying to get one lucrative photo like this monkey selfie. But copyright case law is clear, co-ownership or transferred ownership only comes by written contract in work made for hire, or when actual authorial participation was added to the work. Merely transporting the camera to Indonesia and owning it is not enough to pass the sniff test. Wikimedia is correct, in this case.

Like other IP law doctrines, copyright law does change and reform with the times. Perhaps the era of everyone having a smartphone in the pocket will force another major revision to copyright law to account for complex situations such as this. Just like when the law had to begin adjusting to the Internet age in 1998 with the DMCA.

Bottom Line: Today's copyright law does not allow for a copyright when a monkey steals a camera and takes a selfie. Perhaps when the Planet of the Apes timeline begins, we will adjust our laws and give unto Caesar what is his.

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.