The Selfie Monkey (Rebroadcast)

By: Paul Heald

University Of Illinois College of Law

Well, if you've seen them on Facebook or some other fringe media outlet, then you know that monkey selfies are all the rage. That's right, British photographer David Slater handed a camera to a madly grinning macaque in Indonesia and like any other self-absorbed Millennial, it immediately took a series of selfies. Such compelling pictures, in fact, that they've been copied all around the world.

Taking umbrage at this exploitation of the macaque, the organization People for the Ethical Treatment of Animals (PETA) has filed a lawsuit in (where else?) San Francisco, demanding that all proceeds from the distribution of the images be collected for the benefit of the monkey. PETA claims that the monkey is the author and owner of the photo under U.S. copyright law. 

Now, Congress does have the power to pass laws for the benefit of non-humans, but the judge in a preliminary ruling has held that nothing in the Copyright Act suggest that monkeys can be copyright owners. And the Copyright Office, in a recent regulation, agrees. Well... fair enough, I suppose, but what about the claim of Slater that he, the owner and lender of the camera, is entitled to a copyright in the photos?

Here's where things get interesting, and we have to travel back to the very first photograph case considered by the Supreme Court. In the 1880s, Napoleon Sarony staged a famous photo of dramatist and mega-wit Oscar Wilde. Shortly thereafter, he was ripped off by a lithographer who copied the photo. The infringer claimed that Sarony's camera had merely captured a pre-existing reality: Wilde, with a pensive expression, sitting down with a book in his hand. The photo, therefore, was unoriginal and could not be protected.

This was an argument against the protectability of photography in general, the Court rejected it, noting the orginal choices made by Sarony in setting the launch background scene, posing Wilde, and lighting the set, it found the photo orginal and protected.

Interestingly, the Court refused to hold that all photos are necessarily protected. The "ordinary" production of a photo might not pass the orginality test.

So, we must consider whether David Slater made significant original choices in staging the monkey selfie. The facts surrounding the now-famous photo are a bit slim, but if he merely handed his camera over to the macaque and encouraged him to go at it, he probably cannot claim to have made an original contribution. I don't think that we can predict future courts would adopt a total copyright ban on animal camera handlers, however. One could imagine a moviemaker creating a highly original set, purposefully lighting it, and then strapping a carefully-calibrated camera on the back of a dog or cat. That might be enough original input from the movie maker to secure him or her a copyright in the resulting product. 

Interestingly, Slater claims that his English copyright has already been secured, and this rings true, given that the UK originality requirement is so low as to be merely a ban on plagiarism. The telephone white pages, for example, are sufficiently original to be protected by UK copyright, while here the Supreme Court has declared they are not.

I'll conclude by noting that differences in the protection of fact-based works like the phone book between here and Europe are non-trivial. Here, facts are unprotected. A fact is not original and anyone can appropriate it. The EU has special protection for databases that can extend to facts. In the US, for example, I can scour the web pages of local newspapers and establish a useful movie times web site because the fact of when a movie start time is not original. If I do the same in the EU, I'm a law breaker. 

Hmmm... I think we can guess now why the macaque was grinning so crazily.