Who Owns the Monkey Selfie? (Spoiler Alert: Probably Not the Human)

The world got a crash course in copyright law earlier this week when David Slater, a British photographer, requested that the Wikimedia foundation take down a photograph snapped by a macaque.

The "monkey selfie" was born when Slater set up his camera in an Indonesian forest and came back later to find that monkeys had snatched it and were snapping pictures, The Washington Post reports.

While Slater claims that he owns the rights to the photograph, Wikimedia insists that the work isn't owned by anyone -- because it was taken by a monkey.

Who Owns a Photograph?

Section 102 of the Copyright Act provides copyright protection for, among other things, "pictorial, graphic, and sculptural works." Copyrights are vested in an author. So who is the author of a photograph?

Probably the photographer, according to a Supreme Court ruling in an 1884 dispute over a photograph of Oscar Wilde. In that case, the fight was between the person who snapped the photo and the lithographer, the person who developed the photo. Quoting from English sources, the Supreme Court agreed that "the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination." The lithographer, the Court explained, is merely combining chemicals in a predetermined way.

It would appear, then, that if the monkey snapped the picture, then the monkey is the author. Or, at the very least, David Slater isn't the author. He didn't "represent[], create[], or give[] effect to the idea, fancy, or imagination" of the monkey selfie. He put a camera on a tripod, but otherwise had nothing to do with the creation of the picture. Surely negligence can't be enough to vest authorship in a work.

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The Answer Is...

The answer is that Slater certainly doesn't own the work because he isn't the author. But because the macaque isn't a "natural person" -- that being defined as "a living human being" -- the monkey can't be the author, either. Copyrights work by carving out protection for works that would otherwise be unprotected: If a work doesn't meet one of the requirements of copyright, then it's not copyrighted.

Normally, works aren't copyrightable because they're not original; that was the case in 1991 when the Supreme Court decided that telephone "white pages" weren't copyrighted because they were just arrangements of facts, and facts can't be copyrighted. In this case of first impression, the work can't be copyrighted because the author isn't human and hasn't otherwise assigned the right to someone else (or wasn't a joint author or creator-for-hire). The answer, then (barring any unreported facts in this dispute), is that Wikimedia appears to be right: No one owns the photograph.

In a world where intellectual property is becoming more and more important, it's tempting (and profitable) to assume that someone must own every little thing that's created. But that's just not the case, as we can learn from a ridiculously photogenic macaque.

Related Resources:

• If a Monkey Takes a Selfie, Who Owns the Copyright? (Slate)
• Wikipedia's Monkey Selfie Ruling Is a Travesty for the World's Monkey Artists (The Guardian)
• Sherlock Holmes and the Adventure of Copyright Protection (FindLaw's U.S. Seventh Circuit Blog)
• Legal Battle Over 'Monkey Selfie': Wikipedia Drives Photog Bananas (FindLaw's Legally Weird)