United States: Monkey Business: Epic Copyright Battle Erupts Over Selfie

Last Updated: August 11 2014
Article by Alec P. Rosenberg and Luna M. Samman

In an IP-related story that seems ripped from the headlines of The Onion, a British photographer has claimed exclusive ownership of a Nat Geo-worthy image of a smiling crested black macaque that was shot with his camera during his 2011 trip to Indonesia. The twist? The monkey took the photo1 (apparently after gaining control of the camera from the photographer).

As a result, the photographer finds himself in a dispute with the Wikimedia Foundation (operator of the popular Wikipedia.org website), which included the photo online in its collection of public domain images and refuses to take it down. The photographer contends that he spent thousands of dollars on his trip and on his photographic equipment, etc., and that, by making the image available to anyone for free use, The Foundation has improperly deprived him of compensation to which he is entitled. The Foundation's position is that copyright ownership ordinarily vests in the author of a work and, if there is no human author, there can be no copyright. According to the Foundation, the photograph was in the public domain as of the moment it was created.

The macaque may have just been monkeying around but, under US law, an original work is typically entitled to copyright protection once it is fixed in a tangible format (i.e., an image file or film). Ordinarily, the author (or creator) of the work owns and may exploit the bundle of copyright rights that exist in the author's original expression. However, the Foundation may have a point that, if the author is not a person, the result is different because no legally cognizable "author" exists. This position finds support in Section 202.02(b) of the US Copyright Office's Compendium II of Copyright Practices (currently undergoing revision), which states that "The term 'authorship' implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable." Moreover, in the US, the courts have rejected the "sweat of the brow" justification for copyright protection — i.e., that copyright law should protect efforts and expenditures that result in, for example, non-creative, unoriginal compilations of facts that are themselves not copyrightable — in favor of a system that rewards creative expression per se.

Laugh- or groan-inducing conclusions here are numerous and obvious (i.e., "Apparently, the monkey refused to sign the assignment of rights form." "Arent Fox is one of the leading firms in the world handling IP disputes between humans and monkeys." "If you are a primate who believes that your IP rights have been infringed by an overzealous human, you should consult counsel.").

On a more serious note, the story highlights interesting issues about copyright ownership in expressive works created through artificial intelligence (AI), or in other scenarios in which humans provide the resources and means but do not directly create the expressive content. For example, under The Foundation's position, a painting created by a man-made robot with AI that independently selects colors and brush strokes to create the work of art would be in the public domain. Similar issues could arise with musical or literary works created under analogous circumstances. Section 202.02(b) says that "for a work to be copyrightable, it must owe its origin to a human being." Would the robot's painting or song "owe its origin to a human being?" Should the law copyright in such works to the creator/owner of the robot? Should a different area of law or legal theory entitle the photographer/robot-creator to some compensation?

Footnote

1.The Washington Post published an article about this case, which shows the macaque's selfie. To read the article and view the photo, click here.

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