If a monkey takes a selfie in the forest, who owns the copyright? No one, says Wikimedia.

(David J Slater)

If a monkey snaps a selfie in the forest, does he own it?

By now, the legal pseudo-doctrine of “he who takes the selfie owns the selfie” has settled into the collective consciousness. But what happens if an animal takes the photo?

British photographer David Slater is locked in a dispute with Wikimedia Commons (and its parent organization the Wikimedia Foundation) over whether a photo taken by an animal with a photographer’s camera becomes part of the public domain or the property of the camera’s owner.

Slater insists he owns the rights to the image of a monkey staring curiously into the camera as he snapped a selfie, and the photographer claims he’s suffered considerable expense to secure the photos. The fact that they have been, essentially, distributed for free on the Internet through the Wikimedia Commons Web site has cost him untold amounts of money.

“This is ruining my business,” Slater told The Post on Wednesday. “If it was a normal photograph and I had claimed I had taken it, I would potentially be a lot richer than I am.”

The now-famous self-portrait, if you will, was taken by a crested black macaque (Macaca nigra) in an Indonesian forest in 2011. Slater traveled to the country from Gloucestershire and spent three days following the animals with his camera equipment and a tour guide.

One day, he said, he set up a tripod and walked away for a few moments. When he returned, the monkeys had grabbed his camera and started snapping pictures. Thus, the monkey selfie was born.

That amazing story took off in media reports. The most iconic of the images was featured by The Guardian, the Telegraph and Huffington Post, among others.

Soon enough, it showed up on Wikipedia — first on the page for the species of monkey, then on Wikimedia Commons, which hosts images in the public domain.

In early 2012, Slater officially asked Wikimedia to take down the image. It was removed, but was later added again by another user. This time, it remained on Wikimedia Commons.

(David J Slater)

Slater has also tangled with the blog Techdirt, which first claimed that Slater could not own the copyright of an image taken by an animal.

“The background in my opinion is that they’re communists, they don’t believe in property, they don’t believe that artists should have rights to their work,” Slater said of Techdirt in particular.

In 2011, when Techdirt first received a request from Caters News Agency (which licenses Slater’s photos) to take down the image, it issued this response:

The whole post was about whether or not anyone had a legitimate copyright claim on the photos, noting that the photographer, David Slater, almost certainly did not have a claim, seeing as he did not take the photos, and even admits that the images were an accident from monkeys who found the camera (i.e., he has stated publicly that he did not “set up” the shot and let the monkeys take it). And yet, Caters News Agency has a copyright notice on two of the images, claiming to hold the rights to them. We doubted that the monkeys — who might have the best “claim” to copyright on these photos, if there is one, had licensed the images.

Slater’s dilemma highlights the murky and perilous landscape of intellectual property rights in the digital era.

That famous Ellen DeGeneres Oscar selfie? There is still uncertainty about whether actor Bradly Cooper (who actually pushed the button) owns the image, or if perhaps DeGeneres could make the case that Cooper was temporarily contracted as an employee in her service for the purpose of taking that photo. (That’s unlikely, but there’s an intrepid lawyer willing to make the case).

In the case of this trigger-happy monkey, the Wikimedia Foundation revealed Wednesday, in its first-ever transparency report, that it denied Slater’s request to have the image removed from Wikimedia Commons.

Slater claimed to own the copyright. Wikimedia disagreed.

In an interview, Wikimedia Foundation’s Chief Communications Officer Katherine Maher said the organization is confident that the legal basis for denying Slater’s request is sound, because the person that takes the photo should own the copyright. But a person didn’t take this one.

“Monkeys don’t own copyrights,” Maher said. “What we found is that U.S. copyright law says that works that originate from a non-human source can’t claim copyright.”

According to Maher, Slater would have had to make “substantial changes” to the image — beyond cropping, color correcting and other cosmetic adjustments — in order to own the copyright over the changed product.

“So what we found was that if the photographer doesn’t have copyright and the monkey doesn’t have copyright then there’s no one to bestow the copyright upon,” Maher said. Thus, the lawyers validated what Wikimedia Commons’ editor community had determined to be a public-domain reasoning for leaving the image up.

Not everyone in Wikimedia’s community agreed with the decision to keep the image up. Some did in fact back Slater’s copyright claims.

Slater said he is now seeking legal counsel in the United States, where the Wikimedia Foundation is based, and in Britain, because his livelihood is at stake.

“I’m not rich, I’m actually in debt,” he said. “My life could be very much different.”

 

Abby Phillip is a general assignment national reporter for the Washington Post. She can be reached at abby.phillip@washpost.com. On Twitter: @abbydphillip
Comments
Show Comments
Most Read Lifestyle
Next Story
Caitlin Dewey · August 6