The Washington Post

Just another monkey-copyright story

Three years or so ago, I posted a short article about a peculiar little copyright dispute involving a picture of a macaque monkey that had allegedly been snapped by the monkey itself (using a camera that the monkey had pilfered from the tent belonging to David Slater, a noted wildlife photographer):

monkey selfie 2

I wrote then:

The photo bears a copyright notice: “Copyright Caters News Service.” Raising the odd but interesting question: who assigned the copyright to the Caters News Service? Slater? Perhaps, but that can’t be a valid assignment, for the simple reason that he doesn’t own the copyright just because his camera was used to snap the photo.

That leaves the monkey.

The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions concerning the requirement (if there is one) that humancreativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the more sublime (the copyright status of works “authored” by computer programs or Artificial Intelligence engines).

I entitled the article tongue-in-cheekily “My career comes full circle” because, as I noted there, I suspect that I’m uniquely positioned to analyze any and all monkey-copyright issues, having spent two years in the Kenyan bush back in the 1970s studying the feeding and ranging behavior of the yellow baboon, and a decade or so writing and teaching in the field of primatology and evolutionary biology, and then the last 15 years working on questions of copyright law and other IP matters.

The issue, oddly enough, has resurfaced.  In the recently-released transparency report issued by the Wikimedia Foundation, it appears that David Slater, the owner of the ill-fated camera, has asked Wikipedia to take down the photograph from its site on the grounds that it infringes his rights in the photo.  Wikipedia apparently declined – not (as some have reported) because it has decided that the monkey owns the copyright, but because it has decided that nobody owns the copyright in the photo.

They’re on very firm footing on that one – though in our IP-engorged age, it may be hard for some people to accept the fact than anything useful/valuable/beautiful could come unencumbered by 100 years or so of copyright rights.  If the monkey took the photo — and Slater is himself the source of the story that the monkey snapped the photo using his (Slater’s) camera — nobody owns the copyright; nonhumans cannot own copyright (or, as far as I know, personal property of any kind).  Slater has no copyright claim, because the photo was not his original work – it was the monkey’s.  But monkeys can’t own copyright.  Furnishing the monkey with a camera no more gives him a copyright claim in the work than Microsoft’s furnishing me with a word processing program gives them copyright in what I write.

[Thanks to Michael Reese for passing this along to me]

David G. Post is a Sr. Fellow at the New America Foundation's Open Technology Institute. He taught intellectual property/Internet law at Georgetown and Temple Universities, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace. Views expressed are his own and should not be attributed to his affiliated institutions.

The Freddie Gray case

Please provide a valid email address.

You’re all set!

Campaign 2016 Email Updates

Please provide a valid email address.

You’re all set!

Get Zika news by email

Please provide a valid email address.

You’re all set!
Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read



Success! Check your inbox for details.

See all newsletters

Close video player
Now Playing

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.