Last week, the US Copyright Office released the third edition of its Copyright Compendium. This edition was long awaited – the second edition was released in 1984. The Copyright Compendium details internal regulations concerning how the Copyright Office determines whether an application can be registered or not. In the US, works are protected by copyright the moment they are fixed in a tangible format, however, registration does provide certain benefits. It is required before a civil lawsuit for infringement is filed, for example.

Almost immediately, a number of news outlets zeroed in on one sentence within the 1,222 pages of the Compendium. “The Office will not register works produced by nature, animals, or plants,” says the Compendium. This includes, “A photograph taken by a monkey.” This led to what the internet does best: a viral story about nothing of particular consequence.

The Internet took this sentence as a reference to a certain monkey photograph. To recap: in 2011, a British photographer, David Slater, traveled to Indonesia to photograph black macaques. As he was there, one female macaque grabbed his camera and happened to trigger the camera, taking a series of photos. Upon retrieving the camera, Slater found that several of the photos were quite remarkable and published them, leading to a fair amount of fame.

One of the photos was uploaded to Wikipedia without Slater’s permission. Slater requested removal of the photo, but Wikipedia editors refused, coming to the factual conclusion that the macaque, not Slater, was the sole author of the photograph, thus placing it in the public domain.

The internet exploded with a wealth of discussion about monkey selfies and copyright. Some of it was even worth reading.

Just as things began to calm down, the US Copyright Office announced the third edition of the Copyright Compendium, containing its reference to a photograph taken by a monkey. This led to the most recent burst of news, some of it suggesting that “the government” has “settled” the issue.

Comprehending the Compendium

This is not so for a number of reasons.

First, even if the Copyright Compendium is making a definitive statement about the copyrightability (or not) of the monkey selfie, such a statement is not binding as law. The Compendium itself points this out, saying, “The policies and practices set forth in the Compendium do not in themselves have the force and effect of law and are not binding upon the Register of Copyrights or U.S. Copyright Office staff.”  It should also be noted that a decision by the Register of Copyrights to deny a copyright registration is not dispositive of the ultimate question of copyrightability. 1In fact, the Copyright Act expressly allows for a civil infringement suit to be brought in cases where registration is refused. 17 USC § 411(a).

Second, the statement that “The Office will not register works produced by … animals” is not novel nor surprising. But to say that this settles the question of this particular photograph, as many stories in the past week seem to suggest, begs the question that the monkey is the sole author of the photo.

Third, there is no reason why this question would be answered by US law. Copyrightability is most likely “determined by the law of the state with ‘the most significant relationship’ to the property and the parties”, 2Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F. 3d 82, 90 (2nd Cir. 1998). The court here was looking at the question of ownership, which is distinct from copyrightability, but I believe the analysis is the same. which would clearly not be the US under the facts here: Slater is British, and the photo was taken in Indonesia.

Authorship and photographs

But let’s pretend US law would apply.

The Copyright Act has little to say about authorship. 17 USC § 102(a) says that “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression”, and § 201 says, “Copyright in a work protected under this title vests initially in the author or authors of the work”, but these terms – “works of authorship” and “author” are not defined anywhere within the Act.

The Supreme Court, however, has defined “author,” and it has done so, coincidentally, in a decision establishing that photographs can be protected by copyright in the first instance. In Burrow-Giles Lithographic Co. v. Sarony, the Court said that an “author” is defined as “he to whom anything owes its origin; originator; maker.” 3111 US 53, 58 (1884). Over a century later, the Court would expand on this idea of the author as originator. “The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” 4Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 345 (1991).

So authorship requires two things: absence of copying and a modicum of creativity.

With this in mind, there are at least three possibilities concerning the authorship of this photo: 1) The monkey is the sole author, 2) Slater is the sole author, or 3) the monkey and Slater are joint authors.

We can quickly dismiss the last possibility. Joint authorship requires, in part, that “each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as ‘inseparable or interdependent parts of a unitary whole.’” 5H.R.Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976). The claim that a monkey could do such a thing is even more extraordinary than a claim that animals have knowledge or intent in the first place.

In the case of the monkey as author, the sole act involved is the pushing of the button that triggered the camera and resulted in the shot. This act is certainly necessary to the creation of the photo, but I am not convinced that it is sufficient to establish the monkey as an author. The monkey possesses no knowledge of the nature of the camera, nor knows that pushing the button would result in the creation of a photograph. While copyright law is silent on what, if any, knowledge or intent is required for authorship, surely there must be some level needed to distinguish what the monkey did here from any other force of nature or deus ex machina that could cause the creation of a photograph. The intuition is that there is something specifically human required under copyright law for authorship.

Slater, on the other hand, did everything but push the button. He chose the location, camera, film, and time of day. He set it all up with the intention to create photographs. He processed and developed the resulting photos. The photos would not exist but for these conscious acts.

Courts have found similar acts sufficient for copyrightability. The Southern District Court of New York said the following in 1968 when it was confronted with alleged copying of the Zapruder Film by Life Magazine:

Any photograph reflects “the personal influence of the author, and no two will be absolutely alike”, to use the words of Judge Learned Hand.

The Zapruder pictures in fact have many elements of creativity. Among other things, Zapruder selected the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken, the time they were to be taken, and (after testing several sites) the spot on which the camera would be operated. 6293 F. Supp. 130, 143 (SDNY 1968).

So it would seem to me under this definition that Slater would be considered the author of the photographs.

I do think it’s interesting to note that the division between those who think the monkey is the author of the photo and those who think Slater is the author generally tracks the division between copyright skeptics and copyright proponents. On the one hand are those who have devalued creativity to the point where they think all it involves is the push of a button – even a monkey can do it. So, in that case, why do we even need copyright protection?

On the other hand are those who still recognize some value in human authorship, who think that creativity does not just spring forth independent of human effort, who understand that human effort does not emerge spontaneously but responds to motivation, and that one of the most just and dignified forms of motivation comes in the form of property acquired through creative productive labor.


Updated August 28, 2014 to correct photographer’s name

 

References   [ + ]

1. In fact, the Copyright Act expressly allows for a civil infringement suit to be brought in cases where registration is refused. 17 USC § 411(a).
2. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F. 3d 82, 90 (2nd Cir. 1998). The court here was looking at the question of ownership, which is distinct from copyrightability, but I believe the analysis is the same.
3. 111 US 53, 58 (1884).
4. Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 345 (1991).
5. H.R.Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976).
6. 293 F. Supp. 130, 143 (SDNY 1968).

15 Comments

  1. This is once again why assurance contracts are superior to copyright. Under an assurance contract, the work done by the photographer would have been paid for first and foremost, before the work had even taken place. And it would not be necessary to plow through so many unnecessary constants.

  2. Very well written Terry. I would argue that slater is the author. Most cameras have a “timer” option that allows a photographer to press a button, get into position, and have their own photo taken five seconds later. Although the author was not behind the camera at the exact moment of the photograph, he was responsible for setting the events in motion that resulted in the photograph. There would be no dispute as to authorship there.

    In this case it’s similar situation. As you mentioned, Slater set the events in motion that resulted in the photograph. He brought the camera into the jungle, and by leaving it next to the monkey, set the events in motion to have the monkey grab and play with it. Once the Monkey has it in his hands, It’s only a matter of time before the Monkey presses a big round button and takes a photograph.

  3. The photogrpaher’s name was/is David Slater (not ‘Derek’).

    Slater’s camera was a digital camera. He therefore did not “choose the film”. Nor did he “process” or “develop the resulting photos”. Perhaps he may have cropped or digitally enhanced the photos with software that many such photographers use. But if so, he would only have a copyright claim on the specific/isolated creative elements of such enhancements – not the underlying image itself.

    It is a simple falsehood to state that Slater did everying “but press the button”. He did not choose “the location, camera or time of day” for the specific image in question. The monkey did. Just as it also chose when to snap the picture, the camera angle and his (her?) specific pose. The fact that Slater chose to visit the area with his camera intending to take photos has no relevance to copyright ownership or elligibility.

    If you bring your camera to a park with the intension of shooting photographs, and I then pick up your camera and snap a photo without your previous consent, is it your position that you are still the one who is the author of the photo for copyright purposes? Certainly you are still the owner of the physical film or data card -that contains the image – but that is a seperate issue from the ownership of copyright in the image itself.

    Your citation of the Zapruder case is not on point at all. That only demonstrates that the Zapruder film meets the criteria for copyrightability in light of the uncontested fact that it was created by a human author who was easily identified. Nobody disputed the issue of authorship in that case. It says absolutely nothing on the issue of determning authorship by animals or copyrightability under the facts presented here.

  4. I totally agree with Fact Corrector above as the case is described in the post. I have seen the situation described in various ways, and this just makes the point that the details really do matter. My take is that Slater is the copyright owner because he really took the picture and the story about the simian selfie was just too good of a marketing ploy to pass on.

    However, as someone Mr. Hart would likely describe a copyright skeptic because I believe in limited copyright as described in the U.S. Constitution, I have to add that he think he got the distinction between us and copyright maximalists confused. It is those who argue for limited copyright that truly believe in the importance of creativity because it doesn’t at all just involve the push of a button. Creativity is an inherent piece of what makes us human and thus we need to be very cautious of how we restrict peoples’ abilities and opportunities to create. Hence the need for limited copyright.

    • Well the fact that he throws around “copyright skeptic” as if they were swear words indicates that he feels copyright is above “skeptical” criticism and can do no wrong under any circumstances. Always look to the language – it can be more revealing than you think.

      I come from a background where skepticism is a virtue in itself, along with science, reason, enlightenment principles, dialectic and argument for its own sake. And I don’t feel any shame in saying so.

      Someone such as yourself who is in favour of copyright limitations, and presumably wants to also come down hard on piracy, will still have a hard time passing through any reasonable restrictions on copyright expansionism because maximalists will always insist that property rights have no limits. And as a result, the utopian visions of the maximalists cut off any potential allies they could have.

      Likewise, you could say that those of the unprincipled faction of the abolitionists who don’t care about the lives of artists (original and derivative alike) throw away any potential allies for copyright reform on the grounds that they are entitled to take something from artists without giving anything in return… on the grounds of technical definitions of the word “theft”. And since they screw over derivative artists’ rights to a living as well, those derivative artists have few allies when it comes to pointing out their rights in the face of false claims of “ownership of expression”.

      I hope I can say that I am part of a principled faction of copyright abolitionists that take the property question more seriously, though. And insist that both original and derivative artists have equal claims to the fruits of the work they both put in.

  5. Terry,
    Excellent work citing Burrow-Giles while neglecting to include the language that is important, yet bad for your argument.

    From the opinion: “The third finding of facts says, in regard to the photograph in question, that it is a ‘useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same … entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.’ These findings, we think, show this photograph to be an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author, and of a class of inventions for which the constitution intended that congress should secure to him the exclusive right to use, publish, and sell, as it has done by section 4952 of the Revised Statutes.”

    Here, of course, the photographer had no mental conception, did not pose the monkey, did not select and arrange a damn thing, did not exercise choice or control over the lighting, or anything else in particular other than being there, taking up space. Being there, with a camera, isn’t enough; he has to use it, or direct its use.

    You’d have no problem saying that if a human being picked up the camera and took photos with it, all without permission, that that person would have the claim to the copyright, not the mere owner of the camera. The lack of claim on the part of the owner doesn’t change just because the person who is the actual originator isn’t a person at all.

    This is so typical of the copyright maximalist / enclosure position — everything must be owned! And that’s the real division you’re picking up on. I have no problem with granting copyrights to works that are easily created. Indeed, to even take notice of the ease or difficulty of creation would be to open the door to sweat of the brow, and that’d be unconstitutional. Of course, this also means that there is a great deal of insensitivity toward the ever-bogus claim that we must have expansive copyright because some works are expensive to make. The amount of copyright we have should be tailored to produce the best outcome for the public; let authors figure out what sorts of works they can profitably make within those bounds. If this means we have to forgo some works because they’re unprofitable, then that’s fine, and in fact we do that already as the dearth of trillion dollar movies reveals. (They’d surely be profitable given far more expansive copyright, like compulsory payments whether you watch it or not, and never-ending terms)

  6. What if in actuality what happened is that the monkey was reaching for the camera while Slater was snapping pictures, and it just “looked” like a monkey selfie, so he made up a storyline as a promotional tool? Now, he really couldn’t back out of that claim without tremendous backlash, but in actuality he’s the literal photographer… wouldn’t that change things? After all, it’s his word against the monkeys.. Does the story behind the picture have the power to change the copyright?

  7. Slater owns the copyright. His intent was to travel to Indonesia, set up a camera, and then own anything developed from it. Wikipedia are not only in the wrong, but enable others to make instant copies of any work, re-upload a copy of the copy, and re-download a copy of the copy or the copy of the original copy of the deleted work via the Communist Manifesto, the DMCA Takedown Notice (i.e.: give pirates your name, address, etc., and the copyright information about the work by email or other).

    All arguments supporting the simian is ape-crap. Thanks.

    • Intent has nothing to do with copyright, only the actual act of creation does.

      If, through my own actions, I accidentally spill a bucket of paint on to a canvas sitting on the floor and am able to convince people that it is a valuable piece of modern art, I would still legitimately own the copyright to it, even though it was never my intent to create it. Does anyone here seriously dispute that? But if intend to paint a still life depicting fruit, and a stray cat knocks over my paint can to create the same abstract piece of “modern art”, then I don’t have claim on the copyright.

      Likewise, if I fully intend to create something but don’t actually do it, I have no claim to copyright when another force, person or entity does it. If I fully INTENDED to create Star Wars before George Lucas beat me to it. Would anyone seriously think that I have a copyright claim on that film? Of course not.

      It can’t be that you don’t understand such concepts. It’s that you are simply unwilling to accept aspects of copyright law that you disagree with (while at the same time choosing to chastise others for criticizing other aspects of copyright law that they happen to think are heavy handed).

      • I would also ask the same question of you that I already asked above: “If you bring your camera to a park with the intention of shooting photographs, and I then pick up your camera and snap a photo without your previous consent, is it your position that you are still the one who is the author of the photo for copyright purposes?”

        Based on your comments here, I would assume that the answer must be “yes”, which contradicts basic tenants of copyright’s legal theory and the way it actually operates.

      • Fact Corrector,
        But Slater owns the original. Does he have it registered in the US Copyright Office? If he does, then your argument is null.

        • He owns the original media card that contained the image, but he doesn’t own the underlying copyright to the image itself. I’m stupefied that you still don’t grasp the distinction between these two concepts.

          I have no idea if he bothered to register anything with the copyright office, But if you don’t own a valid copyright to begin with, then falsely registering it with the U.S. Copyright office has no legal effect.

          Please re-read Terry Hart’s own statement above where he says ” It should also be noted that a decision by the Register of Copyrights to deny a copyright registration is not dispositive of the ultimate question of copyrightability.” That is one of the few statements in his post that he is actually correct about. Likewise, a decision by the Register of Copyrights to ACCEPT a copyright registration is not dispositive of the ultimate question of copyrightability.

          • No, no. You, “Fact Corrector”, that leaves out the facts, can be as stupefied all you want, but so long as there is owned property, a creation of material property on that property; as in, a negative, an original, the first, from which a trail from the first and subsequent copies theretofore continue unabated, you’re just wrong. Like your farcical George Lucas example where you willfully leave out that a physical, material object existed from the intent of the creation by the intended first; hence, a material object, your assumption is overruled.

            You argument is to support the copies after the original. “Lawyers do that, but that’s okay” said Chief Justice Roberts in the ABC v. Aereo case oral arguments.

            As to your agreement Terry’s suggestion about that which is or is not dispositive, you’re argument is based that a monkey, ghost, goblin or God can sign and file a copyright registration form to the US Copyright Office. Maybe that gorilla, Rosie (is that her name) who has able hands and can uses sign language could file a form. As for Mr. Slater, he provided a camera, and then retrieved the camera with additional material discovered. Got it, Dr. Zaius? Is that clear enough. Thanks.

      • If I fully INTENDED to create Star Wars before George Lucas beat me to it. Would anyone seriously think that I have a copyright claim on that film? Of course not.

        If you intended to create Star Wars and you did, but then George Lucas used the exact copy of it because a Wookie made the first film, would you have a copyright claim? Yes.
        Now you can go back to the Creative Commons land of Oz, okay.