Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain
from the do-monkeys-believe-in-the-public-domain dept
So our post concerning the takedown request from Caters News Agency over the monkey self-portraits has stirred up quite a lot of interest and discussion around the globe. I wanted to revisit the issue a little more focused on the legal side, and why it seems quite likely that these images are very much in the public domain (which would also suggest that an actual takedown notice (rather than a simple request, as happened here) would represent copyfraud.
First up, I’ve seen many people insisting that the camera owner gets the copyright on any photo taken with their camera. If you read the comments on various other news stories that have covered this, people say this so confidently. They’re almost certainly wrong. There may be some exceptional cases where that’s true, but for the most part it’s not true. The confusion here is between ownership of the photo itself and the copyright on the photo. This is an issue that confuses many people who don’t deal much with copyright law, but the photo and the copyright on the photo are two separate things.
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
That seems pretty cut and dried. The works are not subject to copyright at all. That would make them public domain.
But that’s all under US law. Could there be international claims? Aurelia J. Schultz has the best review of the relevant international law that I’ve seen, and it, too, concludes that the photos are almost certainly public domain. There are two countries where the law may matter: Indonesia and the UK. Schultz first looks at Indonesian law:
Under Indonesian copyright law an author is ?a person or some persons.? Miss Monkey is ruled out right there I?m afraid.
Sorry, Monkey. UK law?
Since it?s a British company claiming copyright, any suit is likely to be brought in the UK. Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law. Unfortunately for the monkey, The UK copyright law also defines author as ?the person.? Sorry monkey, it?s not you.
Monkey see, monkey do, but monkey don’t get no copyrights. Okay, but does David Slater and/or Caters News have any copyright interest in the photos under international law? Again, the answer is almost certainly no. Under Indonesian law, if anyone can claim the right to the image, it might be the Indonesian government:
There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright. If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright. But the photographer didn?t design anything here. He just left his camera. The monkey did all the designing in the photos, so this article shouldn?t apply.
Perhaps more useful here is Article 9, ?If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.? The monkey took the photos in an Indonesian national park. The Indonesian government presumably owns that park and is a legal entity. It would seem that if the Indonesian government claimed it was the copyright owner, then it would be. Except for that ?unless proven otherwise bit.? But this leads us to another question, does the park own the monkey?
If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.
Okay, but Caters said they represented Slater, not the Indonesian government. What about under UK law? There, too, it appears that the image is almost certainly public domain:
Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author. Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection.
- Option one, a British citizen. Pretty sure the Indonesian monkey is not a British citizen.
- Option two, an individual domiciled or resident in the UK. Monkey lives in Indonesia.
- Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend. This seems to include any countries to which the UK must extend national treatment with respect to copyright. Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries. It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident. But, that doesn?t matter because the first part of Section 154 says ?if the author was at the material time a qualifying person.? (emphasis added)
So it appears under UK law, the photos are in the public domain.
So, it’s looking like the image is in the public domain in both the UK and the US.
Of course, given Caters initial response to this whole thing: “Michael, regardless of the issue of who does and doesn’t own the copyright – it is 100% clear that the copyright owner is not yourself,” it suggests that Caters doesn’t wish to recognize a public domain or the value that it provides. I find this to be yet another depressing statement on the state of copyright law today, where people can’t even fathom the idea that such a photo might actually belong in the public domain, where it can be used legitimately to enrich the lives of everyone.