Three years ago, we wrote about the bizarre case of a monkey who apparently grabbed a photographer's camera in a national park in Indonesia and snapped a selfie (that was back before "selfie" was so common a term -- and we just called it a "self-portrait"). There were a few different shots, but the one that clearly got the most attention is this one:
As we noted
when we wrote about it, it seems fairly clear that the work is in the public domain. We were idly curious about how a news licensing agency (Caters New Agency) could claim the rights to the photograph. A few days later Caters itself demanded
that we take down the photo, claiming that the copyright was held by the owner of the camera, David Slater. Slater himself insisted the copyright
was his. However, as we explained in fairly great detail
, looking at the laws of the US, the UK (where Slater is from) and Indonesia (where the picture was taken) the image is almost certainly in the public domain, no matter how you look at it.
Under all three laws, the rules say that the work needs to be done by a person
, and a monkey doesn't count. Slater, however, claims that because the camera is his, it's still his copyright. While that's what many people think copyright law says, it's not actually what copyright law says at all.
The latest is that Slater is apparently still considering legal action against Wikimedia
for refusing to take down the image from Wikimedia Commons.
The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.
Mr Slater now faces an estimated £10,000 legal bill to take the matter to court.
First, I should note that if someone thinks the monkey holds the copyright, that's incorrect as well. While it's true that, in most cases, the person who takes the pictures gets the copyright, as noted above, the laws say it needs to be a person, so monkeys don't count. The image is public domain. The "monkey holds the copyright" claim appears to be a mistake by the author of the Telegraph piece. The guy who uploaded it has directly stated
that he said there was no copyright (i.e., public domain) because there was no human author.
From here, Slater tries to flip the burden of proof, and claims that the copyright is his until proven otherwise in court:
“If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realise is that it needs a court to decide that,” he said.
While it's true that a court would decide the final result, the burden is actually on the copyright holder. To bring a copyright claim, you first have to prove that you hold the copyright. It's not the other way around. As Sherwin Siy of Public Knowledge notes, a system in which you needed a court to assert an affirmative defense would mean that no one
could ever claim self-defense. That's just not how it works.
Slater also seems to believe in an odd "sweat of the brow" concept of copyright that simply isn't relevant:
“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said.
The amount that the trip cost is meaningless on the copyright status of the photo. Photography is an expensive profession, but sometimes, apparently, it's so simple that... well... even a monkey can do it.
That said, the whole "jeopardizing his income" and "taking livelihoods away" lines are pretty extreme and ridiculous. This photo got Slater a tremendous amount of fame, and a chance to capitalize on that. If he wasn't so focused on a misguided legal fight against Wikimedia, why not use the photo as a calling card to get hired to do all sorts of other wildlife shots?
So why is this even an issue again at all? Well, that's partly Wikimedia's fault. It just released a transparency report
, which discusses the whole monkey situation in a case study.