Slater's Macaque: Now We Know Why the Monkey Was Smiling

Slater's macaque. Photo by...Slater's macaque.

As we've been discussing with the Vivian Maier situation, copyright can be a very strange thing. Remember this particularly affable crested black macaque? He commandeered wildlife photographer David Slater's camera in the wilds of Indonesia and managed to take dozens of pictures with it, including this magnificent and much-reproduced self-portrait.

We first discussed this handsome fellow here, and followed up later with this. (You can tell I like this smiley guy.)

So guess what? You'd think the picture belongs to David Slater...it was his camera, he set up the situation, he paid the fare to Indonesia, he was the one who got lucky. But as the Wikimedia Foundation (which deals with copyright all the time, and knows, shall we say, all about that particular monkey business) has now asserted, David Slater does not own this picture.

As Jordan Weissman details on Slate, it turns out that copyright law explicitly requires human authorship. Even then it's not that simple, but most experts are in agreement: this picture is in the public domain, and David Slater doesn't own the copyright.

As the article points out, it's going to make a great final exam question for copyright classes. As David Slater points out, it's a pretty major bummer for him.

I'd like to propose that this picture be known forever after as "Slater's Macaque." That way David at least gets a little credit and honor for it, since apparently he's not going to be able to reap much in the way of profit. (Although check out his website—you can buy a print!)

I seem to remember a situation where an art photographer went to a public swimming pool and passed out waterproof cameras to the kids to take pictures of each other with in the pool. The resulting pictures, edited and printed, were accepted as the photographer's work. I wonder if that would pass the test today? It seems to mimic parallel pretty closely the situation with Slater's Macaque.

Mike

Original contents copyright 2014 by Michael C. Johnston and/or the bylined author. All Rights Reserved. Links in this post may be to our affiliates; sales through affiliate links may benefit this site.

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(To see all the comments, click on the "Comments" link below.)
Featured Comments from:

Glenn Allenspach: "The moral of the story? Never admit that the monkey pushed the shutter button!"

russell: "If Slater had only thought to take a picture of the picture à la Richard Prince...."

Mike replies: Now that's brilliant.

 

Comments

[Tim A.]

I always wondered...what happens to photographers like Gregory Crewdson? He comes up with the concepts, he has full artistic control over his gigantic sets, he (and his team) hires the lighting techs and everything else. But at the very end, he does NOT click the shutter on his large format camera. You can even see it in his documentary. Does that mean his entire body of work he is known for is not his?? Sometimes I swear, common sense is overlooked... Pity...

[Bryan]

And what about all those National Geographic photos taken with "camera traps" triggered by the animal with the photographer completely off site?

[Keith B]

It's now clear: Slater should have lied by saying that, when the monkey was in possession of the camera, he(Slater)had fired the shutter by remote control.

[Jim Bullard]

During the Civil War a small army of photographers shot images the were credited to Matthew Brady, their employer. Did David Slater give the Macaque any bananas and if so could the resulting images be construed as 'work for hire'? :-)

[Bill Tyler]

This resonates interestingly with the recent Vivian Maier copyright issue. Slater owns the file but not the copyright, so is presumably the only person well- positioned to make high quality prints. For the record, I think copyright law is badly broken if he really doesn't own copyright.

Bill

[Bob Sacamano]

Dutch copyright would not allow copyright on the individual photographs, methinks: They do not bear the mark of the author. This should come as no surprise: the "literary and artistic work" that the photographer claims authorship of in your example, is comprised of individual photographs that he did not make. Standards may differ a bit from country to country but this case could easily constructed analogously in most signatory countries to the Berne Convention.

However, the Berne convention has this little provision: (section 2.5) "Collections of literary or artistic works such as [...] anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections."

It aint *much*, but it aint nuttin' either.

[Stan B.]

When you say "were accepted as the photographer's work," I take it you mean the photographer who passed out the cameras, as opposed to the individual photographers who actually took the pictures?

Don't get how the pool scenario is similar since, as stated, each kid would then qualify for individual "human authorship." Don't understand how he got away with passing it off as his work even then (whenever then was)...

[Andrew Hughes]

Do Macaques mimic children in the swimming pool or is it the children that mimic macaques? Copyright lawyers need to know.

[John]

Back when, I always understood that the owner of the film owned the copyright. That would usually have been the photographer, but sometimes the person or firm that hired him/her. The parallel today, would be the camera with the sensor inside it. Maybe there is a case to say the monkey owned the camera, at least for the duration of that session!

[Timba]

I wonder if this is bad news for wildlife photographers using camera traps. It's the photographer that does all the setup, but in the end it's the animal that trips the shutter through a motion sensor.

[Walter Foreman]

Ever since this Slater's Macaque controversy surfaced, I've been wondering how copyright law treats photographs taken by tripwires of one sort or another. Since the target trips the shutter, albeit without touching the camera, is there no copyright? How about timelapse setups where the photographer has wandered off to do other things while the camera does the work?

[Chris Y.]

"Because Monkey may have been born in an Indonesian lowland, but he not born in Indonesian lowland yesterday."

http://www.newyorker.com/humor/daily-shouts/statement-monkey

[Scott DeMello]

I think the issue has more to do with other people being able to use the picture as opposed to the photographer whose camera was used to take the pictures publishing them. In your example, the true copyright holders would have been each person who participated in taking the pictures with the disposable cameras. I suppose the photographer could have had everyone assign their copyrights to him/her. What makes the Monkey picture unique is that no one owns the copyright because an animal actually took the picture. I am somewhat surprised by the outcry over this issue. For those people who think David Slater should own the copyright to the image for the reasons Mike mentioned in the post consider this: by that reasoning essentially the ownership of the camera becomes the determinative factor in establishing copyright. So if Mike and I are out taking pictures together and I borrow his camera and happen to take an award winning shot, no one would think to argue that Mike owned the copyright. The law actually makes sense, but I think people have a hard time with it because in this situation there is no copyright because a monkey tripped the shutter.

The one situation that is not clear to me is where a remote shutter is used that is tripped by something other than a person. I can think of a lightning trigger, a high speed trigger (like where a bullet is captured cutting a card in half) or where a camera is strapped to a tree an an animal's movement trips the shutter. In each of these instances, a human does not take the picture, but like David Slater a person setup the situation for the express purpose of taking a picture. Who owns the copyright? I don't know. Applying the same principles that resulted in no one owning the copyright for the monkey picture should result in no one owning the copyrights. Perhaps someone in the know can chime in.

[Kevin Purcell]

Humans can transfer copyright from one person to another through a contract.

The photographer who gave the cameras to the kids in the pool almost certainly had the children (or more likely) their guardians sign a release to transfer the copyright to him (along with disclaimer for other issues -- one can see that being a in pool is a risky business).

People do this all the time in business. It's called "work for hire".

There are complex of examples of "joint copyright" but in that case the fundamental idea has to be an intention by both parties to create a joint work.

Animals can never generate a work that has copyright. So it can never be transferred to a human as copyright never existed in the first place.

The same applies to other random photographing systems though with some human input that human will get copyright e.g. Google Streetview photos are taken by the human in the car or by a human written program that takes photographs in a non-random manner.

Note that when you hand a camera to another person to frame and take a shot they have the copyright on the photo.

This is usually not important problem but if, at that moment, they take a photo of Elvis stepping out of a UFO to shake hands with President Obama it is their intellectual property not yours. You only provided the camera. It's on your memory card. But it's their photo.

[Tom Hassler]

As is several times repeated in the film Shakespeare In Love, "good title!"

If you don't know this movie, I highly recommend it. It is, at its heart, about writers...

[MHMG]

Slater's not the only loser in this situation. Just think how bummed out the poor Macaque is over that copyright ruling. He could have gotten a few bananas for it if copyright laws truly favored the photographer!

[Steve]

On a similar line, if an image is taken with zero human involvement: nobody points the camera at anything in particular, nobody chooses when to take the picture, presumably that's public domain too?

Like all satellite photos?

I'd guess that the satellite photo company would say that they select good shots after the event, do post processing work etc etc and its *that* part that they own the copyright on.

So surely the same is true for Slater's Macacque: it was David Slater that recognised the picture as a good picture, and selected it, processed it and uploaded it to Wikipedia.

[John Camp]

Surely the macaque (and the children in the pool) were simply photographic assistants?) Or does the photographic assistant who pushes the camera button own the work? It seems to me there are very many parallel situations in which a photographer may not actually "take" the photograph, but "created" the work, and therefore (I thought) owns it.

[Peter Croft]

That art photographer taking away the pictures of kids in a pool would be immediately labelled a paedophile today. In that case, he might be very happy to deny ownership of them.

[Mathew Hargreaves`]

I wrote to the photographer to see if a matte finish print was available. Then I thought--HEY Mike, why not do this photo as a sighed print offer? It really makes me smile. CHEERS...

[Sarge]

Slater's Macaque it is.

Just googled "slater's macaque" and it did return David Slater's macaque (copyright) contretemps. Ditto with image search.

"Slater's Macaque" is shorter than "Celebes crested macaque" (Macaca nigra) or "Sulawesi black crested macaque" (what David Slater calls it). Euphonious, too.

David Slater's macaque's self-portrait is what Wikipedia used in its Celebes crested macaque entry.

[Sarge]

P.S.
Just wondering if Slater's Macaque has called Mr. Deal or vice-versa?

SA

[almostinfamous]

there's now a 3D printed version of the image now as seen here: https://twitter.com/xor/status/509085172730302464

I found that through this link under the section 'Hypo-quandary of the week' which i assume is the legal shorthand for hypothetical, not the chemical fixer.

[Mark]

While the original jpeg/RAW may not be copyright of David (debatelable), the processed and published picture above is his copyright as image editor/processor. I also would have thought that this falls under "joint authorship", in which case it would automatically fall to him as sole applicable copyright holder.

[Chris Crowe]

Now if I trigger a speed camera, do I own the copyright of the resulting image? Can I then sue the police for breach of copyright when they use my image against me?

[robert e]

Who stands up for the Macaques? It seems unfair not only to David Slater, but to the Macaque as well, and to Macaques in general, that the rights revert to the *human* public domain. What's a monkey gotta do?

"...passed out waterproof cameras to the kids to take pictures of each other with in the pool..."

Reminds me of Zana Briskie's project in Calcutta, documented in "Born Into Brothels", where she taught the children of impoverished prostitutes photography and gave them cameras. In that case, though, the point was for the children to own their work and benefit from its exploitation.

[Kevin Purcell]

Not to take this too seriously but knowing something about US copyright law actually helps understand what's going on. So this ended up much longer than I though it would ...

The featured comment: "If Slater had only thought to take a picture of the picture à la Richard Prince...."

I know it's an off hand remark meant as a joke but it's wrong.

The key element for copyright under U.S. law is originality.

A "substantially similar" image of a public domain work does not generate a new copyright in the US because it has no originality. It's a mere copy. See the Bridgeman Art Library v. Corel Corp. case.

http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

In the UK (and elsewhere) this may be different as they take into account the amount of skill and labour in making the new image.

http://en.wikipedia.org/wiki/National_Portrait_Gallery_and_Wikimedia_Foundation_copyright_dispute

This is despite what a lot of museums claim when they issue images of public domain art works they hold and claim copyright on those images. That's called copyfraud and is criminal under US copyright law though curiously there is no way for a private individual to sue for copyfraud so it's still widely done even in the US.

http://en.wikipedia.org/wiki/Copyfraud

The rephotographer would also have to make a "transformative difference" to the image to make a new work that had copyright. Just rephotographing a public domain image won't generate a new copyrighted image. He would have to change it in some way. And the original is still in the public domain.

Richard Prince found this out when he re-photographed Patrick Cariou photographs and modified them but some weren't (in the judges opinion) "transformative" (most notably the "Rasta Guitarist").

http://en.wikipedia.org/wiki/Cariou_v._Prince

Regarding camera traps tripped by animals or natural phenomena there is no ambiguity: a human set up the camera trap to frame an original image to be taken when some non-random condition was met. So the resulting images have copyright.

The fact that the shutter is tripped by an animal is not the issue. It's the creation of the image (the framing and intent give originality) that's the issue. In the macaque selfie the animal framed and took the shot on it's own so no copyright exists as there is no human in the loop.

If you set up a camera "trap" that took random images those images wouldn't have copyright (again this is explicitly called out in US copyright law).

If you set up a time lapse intervalometer then the images do have copyright (as a human made a set of decisions to generate an original set of images). Same with street view images and satellite photos (those photos aren't random they're regular, framed (earth pointing) and controlled by a human on the ground).

If it's a deterministic device set up by a human then it will generate copyrighted images. If it's random then it won't.

IANAL but I have spent a fair amount of time thinking about copyright law.

[Bob Rosinsky]

RE David Slater's serendipitous photo outing: Of course he should own the ©. The monkey's uncles are sabotaging the livlihood of a homo sapien