Who holds the copyright to a picture taken by a monkey?

Caters News Agency claims to have bought exclusive rights to the iconic self-portrait taken by a macaque that snatched a photographer's camera while the latter was shooting on Sulawesi. Caters has sent copyright threats to some sites that reproduced the image, prompting Techdirt (one of the nastygram recipients) to delve deeply into the question of the copyrightability of works created by non-humans.
Under US law (we'll deal with elsewhere soon), you have to have made the creative contributions (the copyrightable aspects) to the image to have it qualify for any copyright protection (and then, it's only the creative aspects that get the copyright). Thus, you could argue that if the photographer had set up the camera, framed the shot, and simply let the monkey click the shutter, perhaps there is some copyright there (though, even then it would likely be limited to some of the framing, and not much else). But David Slater has already admitted that the monkeys found a camera he had left out by accident and that he did not have anything to do with setting up the shot. He's stated that the monkeys were playing with the shiny objects and when one pushed the shutter, the noise interested them and they kept it up. It would be difficult to argue he made any sort of creative contribution here to warrant copyright.

Can the monkeys get the copyright? No. As Justin Levine kindly pointed out, according to the rules published by the US Copyright Office:

503.03 Works not capable of supporting a copyright claim.
Claims to copyright in the following works cannot be registered in the Copyright Office:
503.03(a) Works-not originated by a human author.
In order to be entitled to copyright registration, a work must be the product of human authorship. 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

Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain

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  1. “It would be difficult to argue he made any sort of creative contribution here to warrant copyright.”

    Challenge accepted.

    Suppose I am an abstract artist who pours my heart and soul into work that is interpretive to some, and a complete mess to others. I own the copyright, right?

    Suppose I am the same artist as above, but I completely suck at it. Really, my work is little more than random spatterings. Still my copyright.

    Suppose I am a slob and leave my art supplies laid out and about, and in a hurry, I accidentally walk all over my paint and art supplies, leaving random blotches on a canvas. It’s all my equipment, and the content of the canvas is inarguably my doing, so, yes, I can still claim copyright.

    Now, suppose it was another person walking over my equipment: there might be some room for debate here. But if the same accident was caused by a non sapient animal, it’s really the same argument as if it was caused by a stray roomba.

    So this picture was the result of an accident that was caused by his doing and his equipment–if someone got hurt, he would be liable, so he thus has legitimate claim to whatever product comes out of it.

  2. Meh, in this day and age it sucks to be an artist. If it weren’t for the photog who left his camera out for the monkey to play with, the world wouldn’t have these pictures at all. The guy deserves some credit and some compensation if he so desires.

  3. I think Slater / Caters *do* own the copyright, but for a reason they won’t admit. They’re backed into a corner: in order to assert their IP rights defensibly, they’ll ultimately need to come clean about how the images were created.

  4. Those are nice reflections in the eyes. A mirror on the soul, and in some cases, the photographer. Wonder if there’s anything interesting there in higher res versions.

  5. What about the days before digital? The taking of the photograph was only one aspect of it becoming a print – and the least important aspect, some photographers might argue. Developing the thing was where the artistry and skill (and thus the basis for copyright) were.

    So isn’t there any correlation between that and post-processing nowadays?

  6. 503.03(a) Works-not originated by a human author. So a corporation is legally a person, but is it a human? Can a corporation claim copyright over works it produces?

    Also, what about artistic works that are produced using deliberate randomness, e.g. Jackson Pollack’s drippings, or John Cage’s aleatory music, deciding what note to play next by throwing the I Ching or similar methods? Is a recording of an instantiation of a John Cage piece copyrightable?

    1. 503.03(a) Works-not originated by a human author. So a corporation is legally a person, but is it a human? Can a corporation claim copyright over works it produces?

      Corporations don’t produce content. Corporations are like soylent green: they’re made of people.

      Human beings produce content which is owned by a corporation because the human beings involved signed a contract with the corporation that says “The creative stuff I do here belongs to the corporation.”

      Otherwise every movie produced would have like a thousand different owners and any one of them could prevent it from being shown or released anywhere.

  7. Maybe the creative macaque should send Caters News Agency a takedown notice. A Digital Monkey Copyright Act notice?

  8. For all the seriously funny prose written about this incident, I can’t find any legal difference between this picture and the thousands of pictures the National Geographic has obtained by going out in the wild and setting up camera traps. You buy the gear. You make the trip. You put your gear at risk, and you put your gear to work, and you get some animal photos. Congrats. You have the copyright.

    But it is a lot more considerate to let the monkey pose the picture himself.

  9. It should obviously be a patent: “Device for enabling simian photography, including self-portraiture, …”

  10. lol? this day and age is just about the only time in history it wouldn’t be laughable to try and become a professional artist. there’s more fields that need it now than ever. webdesign, animation, videogames, advertising, to name a few

  11. I think there’s a big difference between the facts here (at least, as reported by the photographer) and the camera traps that National Geographic and the like set up.

    In this case, the human photographer states that this was entirely unintentional — he lost his camera to the monkeys, and they ended up taking those photos without his assistance. He therefore had nothing to do with taking the photo, other than being a klutz. He therefore can’t be considered an “author” under copyright law. (As Acitrano implies, this story sounds a bit “too good to be true,” but that’s the photographer’s story and he’s sticking to it.)

    In the case of a “camera trap” in the wild, there is some person who sets up the camera, points it in a particular direction, and sets up the trigger. That person doesn’t know exactly what will be photographed, but at a minimum is responsible for framing the background of the photo, setting the light levels, etc. There’s a good argument that this person is the “author” under copyright law.

    I think a harder hypothetical case would be someone who attaches an automatic camera to the collar of a cat or dog, and then lets the cat or dog roam around and take random photos (e.g., a new picture every minute on a timer). In that case, the “photographer” doesn’t have any direct ability to control what is being photographed. However, even in that case, there’s some intentional work by the human to set up this situation.

    I think the bigger picture isn’t just the “human versus animals” distinction, but that the claims of copyright are contrary to the purpose of copyright law. Copyright doesn’t exist to protect “hard work,” but to protect creative expression by the author. There’s a good Supreme Court case, Feist v. Rural Telephone Service, that held that a basic telephone-book listing isn’t something that you can copyright, because it’s just a routine listing of factual information in a non-creative way. The key test is whether the authors have made any creative contribution — if not, then they’re not entitled to copyright protection, no matter how much time or effort was spent making it.

    http://en.wikipedia.org/wiki/Feist_v._Rural

    The same would apply here. If the camera-owner’s story holds up, then he didn’t do anything creative at all. He just lost the camera accidentally, and the monkeys then took some pictures accidentally. That’s different than the “camera trap” example or even the “camera attached to a pet’s collar” example.

  12. If there is doubt over the ownership of these images, there can be no doubt over the brokenness of current IP law.

    Sad to say, but this shit is broke if we’re quibbling over such trivialities.

  13. “Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable.”

    I just saw a series of book covers produced by a design studio that did something similar. They defined a framework, input some variables (title, author, date, genre) and the automated process created the covers with sytemized visuals. I know Typotheque has done similar work, and I’m sure a lot of artists also does this kind of thing. Seems to me the copyright laws are bad, because this is clearly the outcome of a creative process (initially creating the framework) just like those pebble designs didn’t come to on it’s own.

  14. In Canada, who held the copyright would probably come down to who owned the digital camera, because under s. 10(2) of the Copyright Act, the owner of the “initial negative or other plate at the time when that negative or other plate was made” is “is deemed to be the author of the photograph”.

    1. The monkey definitely needs an attorney. I know several qualified donkeys who would be willing to take the case.

  15. It’s a philosophical question going back generations: if 1000 monkeys sat at 1000 typewriters, who would get all the publishing royalties?

  16. #24. You should look at the differences between patents and copyright which are both part of intellectual property law. Patents are more applicable to the pebble-pattern machine. You could patent a machine that made random pebble patterns.

    You might be able to patent the process (like Amazon patents “1-click” ordering), but you can’t copyright every output.

    Otherwise why not make a pebble-pattern machine, create 100 million patterns and then aggressively sue anyone who makes a pebble pattern since it looks exactly like one of the ones you already made. Now you own pebble patterns and no one else can every make a pebble pattern.

    1. Exactly what I was thinking…unless that image is 100% right out of the camera and not cropped, resized, color-corrected, rotated, then there might be a question. But if the camera owner did any post-production on it, then it’s his image, as he has made creative contributions to it.

    2. Exactly what I was thinking…unless that image is 100% right out of the camera and not cropped, resized, color-corrected, rotated, then there might be a question. But if the camera owner did any post-production on it, then it’s his image, as he has made creative contributions to it.

  17. What about the settings on the camera? A lot of the art of taking photographs is just looking at the available light and making choices about how to set the dials. That is part of the art of photography and I highly doubt a professional photographer would have his camera on auto exposure.

    He exposed for the location. Then monkeys stole his camera on the location and pressed the shutter, but the exposure decisions were still his.

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