In 2011, Indonesian macaques snatched David J Slater’s camera and started taking pictures of themselves. One of them – a selfie by a female macaque – has since gone viral. The Telegraph reports that Wikipedia denied a notice-and-takedown request from Slater, a professional nature photographer, because the monkey owns copyright on the disputed photo.
This is not really true. Wikipedia has actually claimed that the photo is uncopyrightable, since current US Copyright Office policy is that animals can’t own copyrights.
According to Copyright Compendium § 202.02(b):
The term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.
Slater has objected to this interpretation: “A monkey pressed the button, but I did all the setting up.” According to the photographer, ownership of the photo should vest in him, given the serious financial investment that led up to the photo: “That trip cost me about £2,000 for that monkey shot. ... Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away.”
With all due respect to Slater, the claim that setting up equipment automatically generates a copyright is a bit dubious – otherwise, photobooth companies might own the largest portfolios of copyrights in the country. And my sympathies go out to him – being a professional photographer is certainly a difficult endeavor by which to make one’s living. But you know what’s more difficult?
Being a monkey who’s also a photographer.
It’s hard enough to eke out a living as an artist without the Copyright Office butting in and claiming it is literally impossible for you to own copyrights, just because you’re a monkey. What on earth is this “Copyright Office”, anyways? What right do they have to say whether a monkey’s work is worthy of copyright or not?
According to Slater’s own account, the Indonesian macaques were “already posing for the camera” when one of them started taking photos. Not all of them were good – as it turns out, some monkeys are much better photographers than other monkeys. The “monkey selfie” in question is a diamond in the mud: a truly remarkable portrait, perfectly focused and strategically positioned to capture a mischievous yet vulnerable smile. If that macaque had an Instagram account she’d have, like, a million followers.
But she doesn’t, and the sorry state of our copyright law – as interpreted by the Copyright Office and exploited by Wikipedia – is to blame. Due to the backwards treatment of animal creators everywhere, monkey art (and monkey photography in particular) continues to languish. How is an aspiring monkey photographer supposed to make it if she can’t stop the rampant internet piracy of monkey works?
And it’s not just monkey photography that’s at stake. Animals should not be denied any intellectual property rights simply because they are animals. In a better world, we would have treated our nonhuman artists and inventors with respect. For example:
- The San Diego Zoo should have obtained signed release forms from their pandas before splashing their images all over merchandise.
- Sledgehammer manufacturers should be paying royalties for chimpanzee patents on “A Method for Pounding One Thing With Another Thing Comprising of a Substantially Hard Material Such that the Previous Thing Breaks.”
- Whale musicians should be compensated for the numerous recordings of whale songs that have been sold without their consent.
We all know that artists will not create art unless they are given the unconstrained power to delete their work from the internet no matter where it appears or what it is used for. Our legal regimes have denied this right to animals, so it’s clear they are to blame for the severe dearth of animal art.
It is an incontrovertible fact that a society with more monkey selfies is better than a society with none, so, as long as monkeys are denied copyright, we all lose.
