Monkey selfie

One of the disputed "selfie" photographs taken by a macaque

The monkey selfies are a series of selfies taken by Celebes crested macaques using equipment belonging to the British nature photographer David Slater.

The hosting of the images on Wikimedia Commons was at the centre of a dispute in mid-2014 over whether copyright could be held on artworks made by non-human animals. Slater's claim of copyright on the images was disputed by several scholars and organizations, based on an understanding that copyright was held by the creator, and that a non-human creator (not being a legal person) could not hold copyright. In December 2014, the United States Copyright Office stated that works created by a non-human are not subject to US copyright. In 2016, a US federal judge ruled that the monkey cannot own the copyright to the images.[1]

As of January 2016, Slater continues to claim copyright over the images.[2]

Background

In 2011, nature photographer David Slater, from Mathern, South Wales, travelled to Indonesia to take photographs of the Celebes crested macaques. During his shoot, Slater set up the camera on a tripod, and deliberately left the remote trigger for the camera accessible to the macaque.[3] A female macaque pressed the remote trigger and took several photographs. Most of these photographs were unusable, but some were clear photographs of the macaque, which Slater later distributed as a "monkey's selfie".[3] Slater licensed the image to the Caters News Agency, under the presumption that he held copyright to the photo; Slater argued that he had "engineered" the shot, and that "it was my artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken."[4][5]

The other disputed image, a full-body "selfie"

Slater's copyright claim was questioned by the blog Techdirt, which argued that the photograph was in the public domain because the monkey was not a legal person capable of holding a copyright, and Slater could not hold copyright to the photo because he was not involved in its creation.[4][5][6]

Afterwards, Caters News Agency issued a request for the photo to be removed, citing a lack of permission; however, in response to a reply by the blog's author, Mike Masnick, the representative stated that Masnick had "blatantly 'lifted' these photographs from somewhere—I presume the Daily Mail online", and continued to request its removal (despite Masnick's claim that, if it were even capable of being copyrighted, the photo's use on Techdirt would be considered fair use under United States copyright law), believing that "regardless of the issue of who does and doesn't own the copyright—it is 100% clear that the copyright owner is not yourself."[4][6]

The photographs were also uploaded to the multimedia repository Wikimedia Commons, a site that only accepts media available under a free content license, in the public domain, or otherwise ineligible for copyright. The website had similarly listed the photographs as being in the public domain on the grounds that they were the creation of an animal, and not a person. Slater requested that the Wikimedia Foundation, the owners of Wikimedia Commons, either pay for the photographs or remove them from Wikimedia Commons, claiming that he owned copyright on them. His claim was rejected by the organization, which determined that no one owned copyright as the monkey was the creator of the photographs.[7] The request was revealed as part of a transparency report released by the foundation in August 2014.[3][8]

Slater told BBC News that he had suffered financial loss as a result of the pictures being available on Wikimedia Commons, "I made £2,000 [for that picture] in the first year after it was taken. After it went on Wikipedia all interest in buying it went. It's hard to put a figure on it but I reckon I've lost £10,000 or more in income. It's killing my business."[3] Slater was quoted by The Daily Telegraph as saying, "What they don't realise is that it needs a court to decide [the copyright]."[9]

American and British intellectual property lawyers Mary M. Luria and Charles Swan said that because the creator of the photograph is an animal and not a person, there is no copyright on the photograph, regardless of who owns the equipment with which the photograph was created.[10] However, British media lawyer Christina Michalos said that on the basis of British law on computer-generated art, it is arguable that the photographer may own copyrights on the photograph, because he owned and presumably had set up the camera.[7] Similarly, Serena Tierney, of London lawyers BDB, stated "If he checked the angle of the shot, set up the equipment to produce a picture with specific light and shade effects, set the exposure or used filters or other special settings, light and that everything required is in the shot, and all the monkey contributed was to press the button, then he would seem to have a passable claim that copyright subsists in the photo in the UK and that he is the author and so first owner."[11] Furthermore, Andres Guadamuz, a lecturer in IP law at Sussex University, has written that existing European case law, particularly Infopaq International A/S v Danske Dagblades Forening, makes it clear that the selection of photographs would be enough to warrant originality if the process reflects the personality of the photographer.[12]

On December 22, 2014, the United States Copyright Office clarified its practices, explicitly stating that works created by non-humans are not subject to copyright, and listing in its examples a "photograph taken by a monkey".[13][14]

In January 2016, Slater stated his intention to sue Wikipedia for copyright infringement of his works.[2]

Wikimania 2014

The 'Monkey-selfie selfie' became a theme at Wikimania 2014 at the Barbican Centre in London.[15] Conference attendees, including Wikipedia co-founder and Wikimedia Foundation board member Jimmy Wales,[16] posed for selfies with printed copies of the macaque photograph. Reaction to these selfies and to pre-printed monkey posters was mixed. According to Wikipedia contributor Andreas Kolbe, writing in Wikipediocracy, Wales' action was criticized by some users on Twitter and Wikipedia "for what appeared like tactless gloating".[11]

PETA case

On September 22, 2015, People for the Ethical Treatment of Animals (PETA) filed a lawsuit in the United States District Court for the Northern District of California to request that the monkey be assigned copyright[17] and that PETA administer proceeds from the photos for the benefit of the monkey and other crested macaques on the reserve on Sulawesi.[18] In November, the attorney for Blurb, a defendant in the case, noted that PETA may have been suing on behalf of the wrong monkey.[19]

During a hearing in January 2016, US District Judge William Orrick said that the copyright law does not extend its protection to animals.[1][18] Orrick dismissed the case on January 28.[20][21] On March 20, PETA filed a notice of appeal to the Ninth Circuit Court of Appeals.[22] PETA/Naruto's opening brief is due to be filed July 28; and answering briefs are due August 29.[23]

See also

References

  1. 1 2 Kravets, David (6 January 2016). "Judge says monkey cannot own copyright to famous selfies". Ars Technica. Retrieved 7 January 2016.
  2. 1 2 "The Gwent photographer who won a legal battle over a 'monkey selfie' is to sue Wikipedia". South Wales Argus. 8 January 2016. Retrieved 8 January 2016.
  3. 1 2 3 4 "Photographer 'lost £10,000' in Wikipedia monkey 'selfie' row". BBC News. August 7, 2013. Retrieved August 7, 2014.
  4. 1 2 3 Masnick, Mike (July 3, 2011). "Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos". Techdirt. Retrieved 24 June 2014.
  5. 1 2 "Can monkey who took grinning self-portrait claim copyright?". Metro. Retrieved 24 June 2014.
  6. 1 2 Masnick, Mike. "Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain". Techdirt. Retrieved 24 June 2014.
  7. 1 2 "Monkey 'selfie' picture sparks Wikipedia copyright row". ITV News. ITV plc. 6 August 2014. Archived from the original on 13 August 2014. Retrieved 14 August 2014.
  8. ↑ "Wikipedia reveals Google 'forgotten' search links". BBC News. August 6, 2014. Retrieved August 8, 2014.
  9. ↑ Sparkes, Matthew (2014-08-06). "Wikipedia refuses to delete photo as 'monkey owns it'". The Daily Telegraph. London: Telegraph Media Group. Retrieved 2014-08-06.
  10. ↑ Laurent, Olivier (6 August 2014). "Monkey Selfie Lands Photographer in Legal Quagmire". Time. Time Inc. Archived from the original on 14 August 2014. Retrieved 14 August 2014.
  11. 1 2 Orlowski, Andrew (24 August 2014). "Cracking copyright law: How a simian selfie stunt could make a monkey out of Wikipedia". The Register.
  12. ↑ Guadamuz, Andres (2016). "The monkey selfie: copyright lessons for originality in photographs and internet jurisdiction". Internet Policy Review. 5 (1). doi:10.14763/2016.1.398.
  13. ↑ Axelrad, Jacob (22 August 2014). "US government: Monkey selfies ineligible for copyright". Christian Science Monitor. Retrieved 23 August 2014.
  14. ↑ "Compendium of U.S. Copyright Office Practices, § 313.2" (PDF). United States Copyright Office. December 22, 2014. p. 22. Retrieved April 27, 2015. To qualify as a work of 'authorship' a work must be created by a human being.... Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants. The Compendium lists several examples of such ineligible works, including "a photograph taken by a monkey" and "a mural painted by an elephant".
  15. ↑ "Wikimania Gets Social". Barbican Centre. 11 August 2014.
  16. ↑ WikimaniaLondon (7 August 2014). "So this just happened... @jimmy_wales selfie with a #monkeyselfie #wikimania2014" (Tweet) – via Twitter.
  17. ↑ "PETA files suit on behalf of grinning 'selfie monkey'". 22 September 2015. Retrieved 22 September 2015.
  18. 1 2 A macaque monkey who took now-famous selfie photographs cannot be declared the copyright owner of the photos, Associated Press, January 7, 2016.
  19. ↑ Will the real monkey who snapped those famous selfies please stand up?, by David Kravets, at Ars Technica; published October 11, 2015; retrieved August 2, 2016
  20. ↑ Iovino, Nicholas (January 29, 2016). "Judge Dismisses PETA's 'Monkey Selfie' Lawsuit". Courthouse Naws Service. Retrieved January 30, 2016.
  21. ↑ Naruto, et al. v. Slater, et al., no. 15-CV-04324 (N.D. Cal. January 28, 2016)(Order Granting Motions To Dismiss). Retrieved January 30, 2016.
  22. ↑ Papenfuss, Mary (March 21, 2016). "Captivating monkey Naruto who snapped viral selfies filing appeal for right to photos". International Business Times. Retrieved March 21, 2016.
  23. ↑ Naruto v. David Slater, et al., no. 16-15469, (9th Cir. March 21, 2016), docket; retrieved from PACER July 25, 2016.
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