Here’s another entry for the selfie hall of shame. When photojournalist David Slater got mugged by a camera-hogging monkey in 2011, he couldn’t have imagined that three years later, he’d still be fighting a rights dispute over the resulting monkey selfies.
Much to his dismay, the pictures wound up in Wikimedia Commons, the sister site to Wikipedia that’s a massive online clearinghouse for millions of free-to-use images. He’s been trying to get the photos removed ever since, but the organization refuses. Reason: Slater doesn’t own the rights, the site said in its transparency report Wednesday.
“If the monkey took it, it owns copyright, not me—that’s their basic argument,” Slater told The Telegraph. “What they don’t realize is that it needs a court to decide that.”
See also: Me, My Selfie and I
Well, that’s not exactly what Wikimedia’s asserting here … which is good, because that’s asinine. Even so, as Slater says, maybe we should leave it up to the courts to suss this out.
But what would be the fun in that?
Monkey See, Monkey Do…But Monkey Can’t Own
Let’s get one thing straight: Animals cannot legally own property, intellectual or any other kind. Any good estate planner will tell you that. But it doesn’t stop humans from trying to give things to our furry friends.
A few years ago, Leona Helmsley snubbed her two grandchildren in her will, leaving $12 million to her maltese Trouble. (Poor pup. After the family challenged the will, he trotted off with just $2 million.) Maria Assunta, wife of an Italian property tycoon, left her $13 million fortune to her cat, Tommaso. Kalu the chimp’s gold vines come from his $80 million dollar inheritance, and a German shepherd named Gunther IV would laugh at Tumblr founder David Karp’s $200 million dollar net worth, thanks to his $372 million windfall. Even Oprah’s getting in on the act; the modern-day sage to housewives everywhere plans to leave her pooches $30 million.
Looks like a good time to be a pet (or primate). But even so, those funds go to human executors or trusts listing the pets as beneficiaries. So not even these animals own anything directly.
Neither can a monkey own rights to intellectual property, as Harvard Law grad and writer Sarah Jeong tweets:
IT IS A GODDAMN MONKEY THERE IS NO COPYRIGHT
— sarah jeong (@sarahjeong) August 7, 2014
This is exactly the basis for Wikimedia’s argument. If the monkey can’t hold a copyright, and Slater didn’t hit the shutter button, then no one owns those selfies. There’s only one way to get around this, the organization told The Telegraph, but it doesn’t apply here:
To claim copyright, the photographer would have had to make substantial contributions to the final image, and even then, they’d only have copyright for those alterations, not the underlying image. This means that there was no one on whom to bestow copyright, so the image falls into the public domain.
TechDirt’s Mike Masnick makes a compelling case supporting Wikimedia’s position. He points out that before the 1976 Copyright Act, formal copyright protection required a published copyright notice. Since then, he wrote, people have “been trained incorrectly to believe that everything new must be covered by copyright.”
It’s a good point, and he makes a strong argument for copyright minimalism.
Consider The “Ellen” Factor
This isn’t the first time we’ve seen the Internet chewing over who owns the rights to selfies. Earlier this year, Ellen DeGeneres shilled for Samsung by getting a glam group of Oscar attendees together for an epic, star-studded selfie. But ultimately, it was Bradley Cooper who actually took that viral photo, though using Ellen’s Galaxy Note 3.
Well, at least he’s human.
— Ellen DeGeneres (@TheEllenShow) March 3, 2014
The conversation about who owns this selfie was hot for a moment last March, but wound up fizzling—probably because even Ellen and Brad didn’t really care about it. (They had better things to do, like host a popular talk show and promote blockbuster Guardians Of The Galaxy.)
Now the selfie rights topic is back, this time dragging a three-year-old issue into the spotlight again. And the details of this controversy matter.
While on assignment in Indonesia, Slater left his camera and tripod unattended, giving a crested black macaque monkey the opportunity to swoop in. Amid the blurry crop of digital detritus, a few gems snuck in there—this beautifully clear shot and others among them.
By his own admission, Slater’s not the author. But since the monkey can’t hold the copyright to these pictures—a fact that some seem to have a problem with—should ownership of the rights go to the man who owns the equipment? The kneejerk reaction, i.e. Wikimedia’s reaction, is no. But it might not be as cut and dried as that.
On one hand, if you create a masterwork of Photoshop art or write a game-changing program on a friend’s borrowed laptop, a library terminal, an Internet cafe desktop, etc., can the computer’s owner claim that work? Hecks no! But suppose someone takes your picture with your smartphone or camera. Does it now belong to them?
There’s plenty of room for argument when two humans vie for the rights to the same intellectual property. In Slater’s case, he’s the only party capable of retaining ownership or rights.
That doesn’t automatically make the images his. But it should spark a deeper conversation, not an automatic dismissal. Because ultimately, it’s a grey area in copyright law, and its outcome affects anyone who shoots photos, captures videos, writes code, or creates any other copyrightable work.
Earlier this year, my cat happened to tiptoe onto the shutter button of my husband’s iPad. I had just put it down in selfie camera mode, after failing to take our picture together. But Gojira succeeded in taking a random feline selfie. It’s a little blurry and not well-framed, but I still think it’s super cute.
I’d show it to you, but I’m not entirely sure I’m allowed to post it. Sorry.