David Slater doesn’t want you to see the photo that adorns this page. At least not without my compensating him for the right to display it.
That’s because Slater, a wildlife photographer from the U.K., contends that he owns the copyright to the selfie, which is freely available via Wikipedia. Wikimedia, the nonprofit organization that sponsors Wikipedia, denied a request by Slater to take down the image from Wikimedia Commons, the organization’s repository for images in the public domain.
Anyone can download and use the file so long as they credit the source and author appropriately.
Wikimedia declined to remove the photo because Slater did not take it. More specifically, the image “was taken by a macaque in Sulawesi, with David Slater’s camera,” according to Wikimedia. “As the work was not created by a human author, it is not eligible for a copyright claim in the U.S.”
All concerned agree that the macaque snapped the photo. Under U.S. law, to be eligible for copyright registration a work must be the product of human authorship. According to Section 503.03(a) of rules published by the Copyright Office:
Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.
Slater argues that hauling his camera to Sulawesi, setting it up there and leaving it undisturbed long enough for the monkey to get busy makes him the author of the photograph regardless of who pressed the shutter. “I own the photo but because the monkey pressed the trigger and took the photo, they’re claiming the monkey owns the copyright,” Slater told The Daily Mail.
The contention hasn’t swayed Wikimedia, which, in a report published recently, notes that it received a takedown request from Slater claiming that he owned the copyright to the photograph. “We didn’t agree, so we denied the request,” Wikimedia reports.
Nor has Slater swayed many commentators. Jay Caspian Kang, writing in The New Yorker, notes that despite Slater’s comparing the monkey to an assistant, Slater not only didn’t ask the macaque to take the photo but later took the camera away from the monkey.
Without intent…clear direction (monkeys do not listen to anyone), or an employer-employee agreement (no monkeys signed anything), Slater’s claims that the monkeys were acting on his behalf are absurd. If any reasonable person left her laptop in a café, and a poet picked it up, opened up a word-processing program, and typed out this generation’s Dream Songs, could she reasonably ask for much more than her laptop back? And, since the poems were so good, maybe a selfie with this new Berryman?
Slater intends to take the fight to court. There’s money at stake. ‘I’ve lost tens-of-thousands of pounds and I have every right to sue [Wikimedia] for a loss of earnings,” he told the Daily Mail.
Legal experts don’t think he has a case. Charles Swan, of Swan Turton, a law-firm based in London, told Time that the photo has to be the author’s own creation.
“The fact that [David Slater] owns the camera has nothing to do with it,” Swan said. “To have copyright, you’ve got to create something; it has to be an expression of your personality. That’s not. Obviously, [since the monkey is not a person] there is no copyright in that picture.”
If the case does advance to trial, the monkey might make for a less-than-helpful witness. “He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus,” Slater said, referring to the macaque. “He obviously hadn’t worked that out yet.”