Keywords: Animal Generated Works, Copyright Infringement, Copyrightability, Threshold of Originality
In 2011, British wildlife photographer David J. Slater spent some time in Indonesia taking pictures of crested black macaques when he temporarily left his camera unattended. Reportedly, some of the monkeys began playing with the camera and (accidentally?) took some excellent self-portraits, including a now-famous one dubbed the "Monkey Selfie". After the image had gained some media attention, Wikimedia, the non-profit foundation behind the free encyclopedia Wikipedia, added the selfie image to its Commons, a library of public domain images. Slater made repeated attempts to prevent distribution of the image, claiming that he held copyright in the image: "A monkey pressed the button, but I did all the setting up." The Wikimedia Foundation, however, refused to acknowledge Slater's claim and issued a statement that the picture was a matter of public domain: "[A]s the work of a non-human animal, it has no human author in whom copyright is vested."
In recent weeks, the media have been reporting that animal rights activists PETA brought an action before the Federal Court in San Francisco, claiming that the macaque monkey that actually pressed the button should be declared the copyright owner of the selfies it had taken. PETA argues that the term authorship under the U.S. Copyright Act, 17 U.S.C. §§ 101 et seq., was sufficiently broad so as to permit the protection of any original work, including those created by monkeys. While this claim may seem bizarre, the U.S. Copyright Act, and other copyright acts for that matter, does not contain express language limiting copyright to humans. However, the U.S. Copyright Office, for example, has published an updated third edition of its Compendium of U.S. Copyright Office Practices where it states that works that lack human authorship were not copyrightable. In particular, the Office would not register photograph[s] taken by a monkey" or mural[s] painted by an elephant".
While the Compendium of Office Practices may only be an opinion, the German legal literature, for example, likewise seems to be in agreement that for a work to be copyrightable it must owe its origin to a human being. This shall apply both for original photographs which enjoy protection as photographic works pursuant to section 2 No. 5 of the German Copyright Act (UrhG) as well as for non-original photographs which are protected by a related right in section 72 of the Copyright Act. Selfies will in most cases fall under the latter category.
PETA claims a monkey holds a copyright in a selfie it has physically taken, Wikimedia claims such image was part of the public domain. While PETA's attempt to sue on behalf of some crested macaques is likely to fail, the question as to whether Slater owns copyright might be somewhat more complex. For example, as the telegraph reports, in the UK, under the Copyright Designs and Patents Act 1988, a photographer could claim rights over an image even if he or she did not press the button to take the picture if the result is an "intellectual creation". Since Slater claims to have checked the angle of the shot, set up the equipment and set the light, the possibility may not be ruled out that – depending on the jurisdiction – he could be declared the copyright owner of a photograph which he did not himself take.
Originally published September 30, 2015
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