The Monkey Selfie Case: Applying the Common Sense Test

© David J Slater, 2011. Used with Permission.

If an infinite number of monkeys on an infinite number of typewriters worked long enough they could produce the works of Shakespeare. Or that at least is how the infinite monkey theorem credited to the noted French mathematician Emile Borel (who sadly is more remembered for his monkey example than his other considerable contributions to the science of mathematics) was used to illustrate his thoughts on probability in 1913. However, as we know, the works of Shakespeare are not subject to copyright protection since they have long been in the public domain–but what if, instead of the works of Shakespeare, those simian creators produced an original work? Would that work be protected by copyright and if so, who would own it? Would it be the owner of the typewriter(s) who conceived of and organized the event and thus made the outcome possible, and who then sifted through the disorganized mass of typed papers to select certain material to compile an intelligible work from the random keying of the band of monkeys? Or would it be the monkeys? Or perhaps no-one? And supposing an infinite number of monkeys, or even a few monkeys, or even one monkey, could produce another form of art, like a painting or a photograph? Who would own the copyright? That of course is at the heart of the famous (or infamous) “Monkey Selfie” case and the controversy surrounding the noted wildlife photographer David Slater.

How the Photo was Taken

This is not a new story, but it keeps on bringing new dimensions to the fore. The “selfie” photo has been around since 2011 when Slater, on a trip to Sulawesi in Indonesia to photograph primates, noticed the interest of a band of macaques in his photographic equipment. Initially they took his camera and ran off with it. One monkey even pressed the shutter of the stolen camera, perhaps by mistake or by learning from watching Slater, creating quite a frenzy according to his narrative. However these photographs were of the ground or too blurred to be useful. But this gave Slater an idea. He experimented with various setups, configured the camera’s settings, and mounted it on a tripod which he held while members of the band groomed him. The macaques remained fascinated and manipulated the camera, in the process releasing the shutter again. Several were of sufficient quality to be worthy of reproduction, particularly one such photo (see above) where a female macaque (whom someone has named “Naruto”) was fascinated with her reflection in the lens, mugged for the camera and managed to trigger the device.

The Dispute over Ownership

The sequence of events leading to the “selfie” was carefully staged by Slater (as he makes clear on his website) once he realized the potential of what was happening. In effect he gave concrete expression to an idea. He then produced the photo and licensed it through Caters News Agency. The story went viral when it was picked up by the news media as the “monkey selfie” story under the unfortunately misleading headline “Monkey steals camera to snap himself”. (Headline writers are notorious for shortcutting the nuances of a story in order to grab attention.) Regardless, Slater benefited from the publicity and managed to earn a couple of thousand pounds sterling from licensing the photo. The story then morphed into a copyright issue when Wikipedia decided that it would put up the macaque photo for public use on Wikimedia Commons on the basis that Slater did not own the copyright since the monkey, not he, had actually physically taken the photograph. An inconclusive exchange followed, with Slater requesting that Wikipedia take the photo down, Wikipedia refusing, threats of a lawsuit etc. For Slater this is serious business. His livelihood is wildlife photography and judging by his website, he is very good at it. He estimates he has lost at least 10,000 pounds in licensing fees as a result of Wikipedia’s position that there is no valid copyright on the photo. Once it was so identified (by Wikipedia), it was like giving carte blanche to the worldwide user community. Slater’s fees dried up, and he says the cost of litigation has prevented him from pursuing Wikipedia in court.

Claim of Ownership for Naruto the Macaque

As if that wasn’t enough monkey business, the animal rights group People for the Ethical Treatment of Animals (PETA), in what was a brilliant publicity stunt, upped the ante by bringing suit in California alleging that the copyright was actually owned by “Naruto” the macaque on the basis that it was she who had actually triggered the camera’s shutter. This also went viral, under the byline, “monkey see, monkey sue”, a silly phrase coined by Slater’s lawyers in their filing to have the case dismissed. That in the end was what happened with Judge William Orrick ruling that a non-human was not capable of owning copyright under current US law. Among the references cited was a clarification of conditions of copyright registration issued by the US Copyright Office stating that animals could not register copyrights, giving as specific examples a photograph taken by a monkey or a mural painted by an elephant. PETA has appealed the decision so we will hear more of this saga, likely next year. While it is likely that PETA does not expect to win, they have already achieved their goal of garnering publicity for their stated cause of animal rights. Meanwhile, we now know that according to current US legal interpretations Naruto the macaque does not own the copyright. But does Slater, or is this a case of no ownership because the supposed “creator of the work”, Naruto, has been ruled ineligible? It’s an interesting question. I was intrigued therefore when I got an email from Slater asking if I would be interested in writing about this case on my blog. Why not? The story is a fascinating one, but the basic elements have already been told, much as described above. What could I add?

Which Law Applies?

What I can contribute is my personal perspective on how Slater has been treated, and the difficulty he has had in establishing his ownership of a work that would not have been created but for him and the creative effort he put into it. Is this sufficient to establish copyright? Some, such as Techdirt’s Mike Masnick, dismiss the claim out of hand, but others, including Andres Guadamuz of the University of Sussex have made a well-argued case to uphold Slater’s copyright under UK/EU law. One of the issues is deciding which national law applies when seeking to uphold the copyright. Slater says he has registered the copyright for the photograph in the UK (Guernsey), even though registration is not a requirement. In principle, copyright recognized in one Berne Convention country will be recognized in another–but only on the basis of national treatment. Simply put, this means that the creator in country A will only receive the same treatment (protection) in Country B as would a national of that country. Moreover, if there is an alleged infringement, the issue will normally be decided in the jurisdiction where that infringement took place. Since Wikipedia is headquartered in San Francisco, any suit against it would normally proceed under US law in California. This illustrates one of the challenges of the internet age where what may be an infringement in one country, (e.g. the United Kingdom), is not considered an infringement in another, such as the United States (either because of different interpretations of what constitutes a copyrightable work or because of different approaches to fair use and fair dealing). Yet in the age of the internet that “infringing” copy legally hosted in the US is still made available world-wide, and there is not much that the author can do about it.

So where does all this leave us? Quite apart from the specious PETA claim that the copyright belongs to the monkey, it is clear that you can line up copyright lawyers on both sides of this case, and on both sides of the Atlantic, to argue either that since the copyright does not belong to Naruto, a) the work must be in the public domain, or b) it belongs to Slater as the human most closely associated with its creation. This should keep the legal profession spilling ink for years. However, leaving legal hair-splitting aside for a moment, let’s look at this case from a common sense perspective.

Applying the “Common Sense” Test

Would the photo have been taken without Slater’s equipment, efforts and staging? No. Would the photo have been selected, developed, printed and distributed without his efforts? Clearly not. Did Slater engage in a creative act in bringing about the production of the photo? There are strong grounds for saying so. To deny the photographer the fruit of his labour on the slimmest of technicalities (i.e. whose finger actually pressed the shutter) seems to me to be the flimsiest of pretexts to deprive the true creator of his due. In fact, the “fixation with fixation” opens up more questions, given the evolving use of technology in creation of original works. In photography, is the mere act of pushing the shutter the act of creation, or is it the staging, technical settings, composition, selection etc. that is the true test of creativity? What about the use of timers, tripwires and other mechanical means of reproduction? Does no-one own the rights to such photographs?

Whether the law—and which law—will uphold Slater as the creator of the “monkey selfie” and thus the rightful owner of the copyright is hard to say. Unfortunately, it will likely be a costly exercise for Slater to find out as it appears that ownership will be decided only through litigation rather than by common sense. And that’s a shame.

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores. View all posts by hughstephensblog