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Blog

The Monkey Selfie: When A Monkey Is No Longer a Photographer’s Prime Mate

August 21, 2014

Blog

The Monkey Selfie: When A Monkey Is No Longer a Photographer’s Prime Mate

August 21, 2014

Back to Fish's Trademark and Copyright Blog

 

It seems like everyone today takes selfies (i.e., self-portrait photographs typically taken on a camera phone). They’ve taken over our popular culture – from Ellen DeGeneres’ Oscar selfie (technically a “groupie”), to The Chainsmokers’ viral hit #Selfie, all the way to the actions of our non-human primate friends.

Currently, British photographer David Slater is engaged in a dispute with Wikimedia Commons (a project of the Wikimedia Foundation that offers an online repository of free-use images, sound, and other media files) over who holds the copyright to a photograph taken by an animal on a photographer’s camera. In 2011, Slater spent three days traveling with a guide in an Indonesian forest, following and photographing wildlife in their natural habitat. During that trip, a particularly curious crested black macaque snatched the camera Slater had set up on a tripod and began taking hundreds of photos, one of which was the now famed “monkey selfie” in dispute. In 2012 Wikimedia removed the image upon Slater’s request, but it was later added back by another user. Most recently Wikimedia has denied Slater’s renewed request to remove the image from Wikimedia Commons, on the basis that the monkey was essentially the author of the image, but because copyright ownership requires human authorship, the image belongs in the public domain.

The Copyright Office sides with Wikimedia. The draft third edition of the Compendium of U.S. Copyright Office Practices, released on August 19, expressly provides that a photograph created by an animal is not protected by U.S. copyright law. Had Slater journeyed to the Indonesian forest specifically to capture monkey selfies, perhaps by strapping a camera to a monkey’s hand, coaxing it into posing for a self-portrait, and then prodding it into pressing the shutter button, then perhaps he could have sufficiently set up the situation so as to be considered the author of the resulting images. However, in this case, the macaque appears to have made off with Slater’s camera (there are even some images taken by the macaque showing Slater seeming to ask for his camera back) and happened to press the shutter button repeatedly until the resulting “monkey selfie” occurred. Perhaps this is more akin to the theory that if given enough time, a monkey randomly tapping at a typewriter will at some point type out the complete works of William Shakespeare. No matter the extent of primate-authorship in this case, the lack of a human author for the image appears to make the “monkey selfie” one for the public domain.

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Kristen McCallion | Principal

Kristen McCallion is a Principal in the New York office of Fish & Richardson and Chair of the firm’s Copyright Group. Ms. McCallion represents businesses in the consumer products, Internet, media, and interactive entertainment industries in copyright, trademark,...

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