Tuesday, August 26, 2014

No Copyright Protection for Iconic Monkey Selfie

In 2011, wildlife photographer David Slater set up a camera on Sulawesi, a small island in Indonesia.  Mr. Slater received an unanticipated gift, a monkey picked up his camera and took hundreds of pictures, including self portraits or “selfies” that have gone viral on the web this past year.  Recently, controversy has erupted over who owns the copyright to the photos.  David Slater has claimed ownership, along with thousands of dollars in unpaid royalties from the photos that went viral.  As reported by the BBC and The Los Angeles Times, “Wikimedia, the nonprofit behind Wikipedia, says the pictures taken by the monkey belong to the public domain and has refused to take them down.  Slater has said that he is missing out on thousands of dollars in royalties and that he played a bigger role in the photos’ creation than he’s receiving credit for. “You could look at it like this: The monkey was my assistant,” he told the BBC.

The U.S. Copyright office addressed this issue recently in a public draft of the Compendium of U.S. Copyright Office Practices, Third Edition — which was released Tuesday.  It says the office will register only works that were created by human beings.  “Works produced by nature, animals or plants” or “purportedly created by divine or supernatural beings” don’t count, it says. The first example in that category is “a photograph taken by a monkey.”  Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

With some sound legal advice -Mr. Slater could have obtained copyright ownership if he digitally altered the images enough -where his creative choices would have given him ownership of the image under 102a of the US Copyright Act, which states “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device;” however this was not done.  Since the photos were all release unaltered, or without any significant alterations,  the photos are in the public domain according to the U.S. Copyright office.