Have you heard the one about the monkey who stole the wildlife photographer’s camera and took a picture of herself? And then Wikipedia posted the photo, without asking anyone’s permission to do so, claiming that the photograph is in the public domain, while the photographer—the man, not the monkey—objects, claiming ownership because, among other things, the monkey used his camera.
You hadn’t heard? Well, now you’re up to speed. But notwithstanding the grin on the macaque’s mug in the embattled photo, this isn’t a joke. British shutterbug David Slater has made several requests that Wikimedia, the not-for-profit entity that runs Wikipedia, remove the photograph from its Wikimedia Commons repository of images. Each request has been met with a refusal and a reiteration of Wikimedia’s position on the matter that Slater is not the author or copyright owner of the photo.
Wikimedia’s stated rationale is that “as the work of a nonhuman animal, [the photograph] has no human author in whom copyright is vested.” And therefore the photo was in the public domain ab initio. At least one lawyer agrees with Wikipedia. According to a Law360 article, Brad Newberg, a partner at Reed Smith LLP, opined: “Everything regarding copyright is about who put the creative elements into the end work, not who supplied the camera.” Newberg said that Slater would only own the copyright if he manipulated the photo in postproduction, according to the Law360 piece. (“However, Newberg said, everything he’s heard about the photo suggests the basic premise that the monkey took a selfie and then Slater shared it with the world without creative post-manipulation.”)
This author is of the opinion that some legal professionals don’t know enough about photography. Sure, even professional photographers manipulate their work after the fact, but the more work one does before pressing the shutter button, the less one has to do in the darkroom or on the computer. And, judging from the quality of the photo in question, Slater (and presumably not the macaque) did a lot of work beforehand, because it is a terrific picture.
And yet Slater gets no credit for that, legally speaking. Something isn’t right here.
“I’ve told [Wikimedia] it’s not public domain,” Slater has said. “They’ve got no right to say that it’s public domain. A monkey pressed the button, but I did all the setting up.” Yet Wikimedia and at least one lawyer would have it that the monkey is the author—but being nonhuman can not be the copyright owner, and so there is no owner.
Is it possible that Wikimedia and some lawyers have not heard of joint authorship? It’s in the Copyright Act. According to 17 U.S.C. § 201(a):
Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co[ö]wners of copyright in the work.
Granted, Section 101 provides that “[a] ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” but I suspect that, absent evidence of the monkey’s intentions at the relevant place and time (Indonesia, 2011), we can attribute to her at least a willingness to collaborate, without doing much violence to the law. And then we can find that because the monkey isn’t human she therefore can not be a copyright owner, leaving her putative joint owner the sole owner.
This legal fiction is surely preferable to the alternative, which denies Slater the full benefits of his efforts. The monkey did the smallest part of the work. The man deserves the reward.
Now, orange you glad I didn’t say “banana”?