Monkeys and humans are similar in more ways than one: we have opposable thumbs, share a majority of DNA, and evidently, love taking selfies. Back in 2011, British photographer David Slater travelled to Indonesia to take photographs of black crested macaques. In a not-so-surprising turn of events, the macaques completely disregarded Slater’s setup and started playing with one of his cameras that produced the photo under controversy: a selfie of a grinning macaque that garnered much internet craze and went viral. The photo found its way onto Wikimedia commons where it is free to download and use and, despite Slater’s removal notices, has been kept in the public domain. Wikimedia has stated that Slater does not own the rights of the photograph as he did not take the photo but the macaque did. On the website where the photo is available for download the license states that,
“...this file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”
This raises an interesting question regarding copyright ownership. So who legally owns the photo in question?
Under the Copyright Compendium Section 202.02(b), it is stated that:
“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 argues that if it were not for his equipment and setup, the photos would not have existed to begin with. He stated that, in a way, the macaque acted in the capacity of his assistant. A common practice among photographers includes setting up the shot but having their assistants click the photograph, but in instances such as this, intellectual property ownership still vests with the photographer and not the assistant. Even if such an argument were to be made, the fact that the macaques handled the camera themselves and took a number of photographs (out of which only a few were usable) invalidates Slaters argument that he ‘set up’ any shot but instead reinforces that he merely provided the camera.
Regardless, this is an interesting debate. Not because animals need copyrights––they have no use of money––but because it raises the question of whether when an animal creates art, if that means the creation will directly fall within the public domain or will someone else manage to secure the rights to it. What if my dog becomes the next big thing in the art community with his paw-scapes fetching upwards of $10 million a painting (it wouldn't be totally surprising seeing what passes for art these days)? Since animals do not have intellectual property rights, does that mean those rights, as his owner, belong to me for supplying the paint and canvases, or will anyone be free to merchandise his paintings? Just some food for thought...
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