Last summer, in a forest in Indonesia, a female macaque took a self-portrait (or “selfie”) using the camera of the English naturalist photographer David J. Slater. The news spread around the world raising smiles, but also doubts about the picture’s copyright protection.
The monkey grabbed the unguarded camera and took more than one hundred pictures. Some of them were out of focus, while others were surprisingly neat. Among the latter, the best one was a “selfie” of the smiling macaque.
Wikipedia published this picture without asking prior consent to D.J. Slater. Mr Slater demanded the removal of the image from the website but Wikimedia Commons, the non-profit community administering Wikipedia’s pictures database, refused. Wikimedia Commons claimed that the picture was taken by an animal and not by a human and, therefore, was not copyright protected. On the other hand, the photographer rgued that he was the copyright owner because even though the macaque pressed the camera button, he was the one who performed all the activities needed for the making of the photo.
D.J. Slater’s argument referred to an approach taken by the U.S. Courts. The U Courts recently stated that in great photography projects, during which it is possible that a photographer’s assistant pushes the camera button, the copyright owner is the photographer and not the assistant (even though U.S. law provides that the copyright owner is whoever pushes the camera button). In other words, the photographer claimed that the monkey acted as an assistant, and consequently the photographer owns the photo’s copyright.
However, the U.S. Copyright Office does not share the U.S. Courts point of view. In fact, the latest draft of its Compendium’s third edition (the official and final version will be published in December) provides that registration of “works produced by nature, animals or plants” shall be rejected, and only original works performed by human beings shall be registered. Therefore, just as paintings created by elephants do not qualify for copyright protection, selfies taken by monkeys (the Compendium explicitly refers to monkey’s selfies) do not qualify either.
The U.S. Copyright Office’s decision will surely continue to draw the public opinion attention. It is true that the macaque pushed the camera button, but the photographer was the one who made the photo possible. So far, the photographer has seen his work going viral, but he has not received any reward for it.