Monkey “Selfie” at Center of Copyright Dispute

August 26, 2014
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A recent copyright dispute highlights that even the animal kingdom is not immune from the “selfie” craze. British photographer David Slater contends that he owns a photograph taken by an Indonesian macaque that stole his camera. Meanwhile, Wikipedia contends that the image, which is posted on one of its websites, rightfully belongs in the public domain.

Gorilka-001According to media accounts, Slater traveled to Indonesia to capture the crested black macaque. While he was shooting, one of primates hijacked his camera and took over 100 pictures. Not surprisingly, one of the photos she took of herself went viral after Slater posted it online.

Earlier this year, Wikimedia Foundation, which owns Wikipedia, posted the “selfie” in its online database of public domain images. The Wikimedia Commons is a collection of 22,302,592 images that can be used by the public without paying royalties. Upon discovering the image, Slater asked the company to remove it, but Wikipedia has refused.

The primary issue in the dispute is who owns the copyright to the image.

Under U.S. copyright law, ownership rights vest immediately. However, works must satisfy three criteria in order to obtain copyright protection. They must be in tangible medium, be original, and have author. In this case, the third requirement is causing the most debate.

Slater maintains that he expended significant resources to capture the shot and has been unable to reap any of the financial benefits of its popularity. He further argues that the copyright should vest in him because he owns the camera that captured the image, citing “If I have an assistant, and the assistant presses the camera on my behalf, I still own the copyright.”

Meanwhile, Wikipedia contends that the photo is in the public domain because “non-human authors” are not granted an automatic copyright of photographs that they take. “To claim copyright, the photographer would have had to make substantial contributions to the final image, and even then, they’d only have copyright for those alterations, not the underlying image. This means that there was no one on whom to bestow copyright, so the image falls into the public domain,” it argues.

While it may unfair that Slater cannot profit from the use of the image, most intellectual property experts agree that he cannot claim copyright ownership. While the result may have been different if Slater had played a more significant role in creating the image, such as adjusting the lighting or angle of the shot, in this case, the money simply stole the camera. Moreover, Slater did not interject his own creativity in post-production. For instance, he made no substantial edits to the color, sizing, or shading of the image before posting it online.

If you have questions about this post or would like to discuss copyright issues impacting your company, please contact me, Fred Zemel, or the Scarinci Hollenbeck Intellectual Property and Technology attorney with whom you work.