Friday, September 12, 2014

Wikimedia makes monkey out of photographer (or is it vice versa?)

Last month, Wikimedia (the operator of Wikipedia) again refused the request of British photographer David Slater to remove a picture of a monkey from the Wikimedia Commons database of publicly available photographs. Wikimedia’s refusal was based on its position that the photograph is not subject to copyright.  

The photo is a “selfie” of a crested black macaque taken in 2011. Slater was in Indonesia on a wildlife shoot and preparing to photograph – or in the process of photographing – several of these animals when one borrowed his camera. The camera was recovered/returned with “tons” of pictures, most of which were out of focus, but with a couple, such as the one above, looking very professional. Slater posted the photo online and it became very popular.
Earlier this year, the photo was posted to Wikimedia Commons. Slater reports having made several requests for the photo to be removed from this public database, but only last month received an explanation as to why his requests were refused. Wikimedia denied Slater’s request, claiming that the photograph was not subject to copyright because it was the work of an animal.  

Wikimedia is not making this up. Believe it or not, the U.S. Copyright Office expressly states in its Compendium of U.S. Copyright Office Practices,Third Edition that it will not register works produced by nature, animals or plants, and it doesn’t appear that other countries have gone on record with contrary policies. Experts agree that since this photo was taken by the monkey, the photographer does not own the copyright. If there is no copyright owner, it seems logical that the photo is in the public domain.  

This makes perfect sense – at least to me.  

The photographer, on the other hand, is claiming that he should own the copyright because he had creative input and direction over the photograph. There might have been some validity to such a claim had the photographer intentionally set out to shoot monkey “selfies”  and made creative or technical choices regarding such things as the setting, the lighting or the lens before handing the camera to the monkey.  But that banana has been peeled.  Slater himself — at least in initial reports — suggested no such planning or involvement on his part, and certainly no control over the photography work performed by the monkey.

There are others who say that Slater should own the copyright because he paid for the trip to Indonesia and owned the equipment used by the macaque to take its own picture. But would these same persons make that argument if they used their friend’s phone (having left their own at the hotel) to take a perfect picture of a cathedral that their friend later sold for commercial use? Probably not. While many aspects of copyright law can be complex, there are certain basic rules. The creator – the person actually creating the original work – owns the copyright effective automatically upon creation, unless it was created in the scope of their employment (in which case copyright belongs to the employer), or they have entered into a written agreement for creation as a “work for hire” or expressly assigning the rights to another party. Ownership of equipment, payment for services, or even payment for a particular outcome does not transfer copyright ownership. You need the employment relationship or the written agreement.  

And then there are those who think this is just another big business (the nonprofit Wikimedia?) or government (Copyright Office) conspiracy to… to…to…what? Enrich Wikimedia? Steal from the individual to benefit the masses? Or my favorite – take rights away from the monkeys?

1 comment :

  1. Great article Lori. I guess all those people attaching body cameras to their dogs might want to think again :). Interesting intersection between the law and pop culture.