Wikimedia: Because the Monkey Pressed the Shutter, It Owns the Picture

August 6, 2014 by Maaz Khan 17 Comments

The two pictures above were taken by British nature photographer David Slater in 2011, when a black macaque walked over to him and hijacked his camera, proceeding to take numerous amounts of selfies. With the pictures going viral, they found themselves on Wikimedia’s Commons page, where they’ve been available as public domain. The problem? When David Slater requested the pictures be taken down, Wikimedia refused – the reason being that because it was the animal pressing the shutter, the photo didn’t actually belong to him.

It’s safe to say that Wikimedia might be going a bit bananas (I’m sorry.) here, because what they’re basically saying is that since the monkey took the picture, it owns the copyright.

IT’S HAPPENING

David Slater now faces legal battle with the organization, which is set to push him back by $10,000 in bills alone. Talking to The Telegraph, the photographer stressed that the trip during which the photo was taken cost money to make happen. He emphasized on the fact that his equipment was expensive, his editing tools were expensive, and that Wikimedia publishing his picture to the Commons page was taking away his livelihood by jeopardizing the income he works for.

“For every 100000 images I take, one makes money that keeps me going. And that was one of those images. It was like a year of work, really.”

– David Slater, Telegraph

A completely bizarre case without a doubt, there’s obviously a lot that can be said with regard to the humor and absurdity of the entire situation. But the question still remains on whether Wikimedia has any legal ground at all to make the claim that they did. David Slater, preparing to face them in court, doesn’t think they’re there yet.

If I had to give my opinion on the matter, I think a bit of unfairness is in play here. When you take the entire situation into account, any person out there with common sense would be able to see that it was the photographer who made the situation occur. He took the trip there, he interacted with the animals, and it was because of him that an animal took those pictures. I don’t exactly believe you can put ownership of anything into an animal’s hands, considering they’re not held under the law in the first place. And if that makes the photo unowned by either David or the macaque, which Wikimedia is using as their reasoning for keeping the picture up, then they’re hurting themselves. I’ve always held respect for the organization, but they’re damaging their relationship with the professional photography community right now, and it’s not worth it for one monkey picture.

[Telegraph via OurManAtTheScene]

About Maaz Khan

Maaz Khan started off teaching himself photography with a disposable Kodak camera he got for his 7th birthday. His main weapons of choice are now the 5D Mark II, and an LG G2 when mobility calls.

You can find some of his work at his website, twitter Twitter @drcon and Instagam @maazcon

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Morgan Glassco

Here is how I would have handled it.

I put the camera on Self Timer and handed it over to the animal. Thus I took the shots ;-)

Take my DAMN picture down already – DS
Joseph Linaschke

This will be a very interesting case, and I’m glad it’s going to court. It’s the kind of thing that sets precedence, and someone has to be first. If the photographer can’t get reimbursed for his legal fees as part of the judgement, I’m sure the photo community will rally and raise funds to pay for it.

It’s whoever pushes the button that owns the copyright, regardless of who performed or paid for the setup, unless they are employees or have signed a “work for hire” agreement. That’s why most pro photographers with contract assistants make them sign a WFH before they can shoot anything for them. However as has been pointed out, a primate isn’t human, and doesn’t fall under the same laws as we do. But (and I don’t know the answer to this), can animals have legal ownership of anything? If someone dies and wills their property to their dog, does the dog actually own that property? It’s not like the dog can act on it. Animals do not have the same legal rights that humans do, in general, as far as I understand things. I believe that any legal action against an animal is effectively against the owner, but obviously in this case the monkey has no owner. Thank goodness… man, that’d add another layer of complication to it. I can see that one now; “my monkey pressed the button, therefore *I* own the copyright”. Ugh.

I’m certainly on the side of the photographer. The button wasn’t pushed by a human, therefore ownership defaults to the human that set up the shot. Look at it this way; if I set up a camera with a sound activated trigger, and dog barks which triggers the camera, does the dog own the photo? Shit, what if a person claps and that triggers the camera, does that mean they own the copyright? Hoo boy this gets complicated.

Very very interesting case to follow, for sure.
- D
  
  The difference between this and a camera trap of the sort you described is that with the camera trap, some human agency was involved in intentionally creating the shot. That’s not the case here. This is a bit more similar to a camera falling off a table, firing when it hits the ground, somehow miraculously capturing a perfect shot in the process. That is to say, a total accident, with no intention or agency involved in creating the shot at all.
  
  If he’d handed the camera to the monkey, or baited the camera with fruit or done /anything/ to intentionally encourage the event, it’d be pretty clear.
  
  I rather suspect the courts will decide in the favour of the photog, but it’ll be interesting to see how it develops.
- Mike O’Brien
  
  “The button wasn’t pushed by a human, therefore ownership defaults to the human that set up the shot.”
  But that seems to be assuming that someone has to own the copyright. Since there are loads of photos that don’t have a copyright holder the assumption is invalid.
Ryan Hoover

If he gave the Monkey a banana that could be perceived as payment in a work for hire manor, still leaving the copyright with the company (Photographer).
NeelyWObrien

The problem? When David Slater requested the pictures be taken down, Wikimedia refused – the reason being that because it was the animal pressing the shutter, the photo didn’t actually belong to him. http://apu.sh/9a7
Rick

Does WikiMedia have the image direct from the camera or are they publishing the edited and enhanced bit of artwork that was created/produced by David Slater? If they have the latter, they have no standing.

If Mr. Slater has any sense, he never let the original uncopyrightable image that the monkey took out into the wild. And if he hasn’t allowed it out, any image published will be based on his work, not the monkey’s.
kbb

I have nothing [as far as I know] against Wikimedia, but I sincerely hope that the photographer succeeds in suing them ‘back into the stone age’, as it were…solely as a penalty for the stupidity of claiming that the ape owns the copyright.
Shadows44

“because what they’re basically saying is that since the monkey took the picture, it owns the copyright.”
No, they’re not. The Photographer is misrepresenting their position.

They’re saying that since the monkey took the picture, since monkeys can’t own the copyright, and since the photographer did not set up the shoot, the picture is in the public domain. That no ones owns the copyright. Which is very different, and not “bananas” at all.

All this is clearly stated on wikimedia, on the very page you linked to : http://commons.wikimedia.org/wiki/File:One-of-the-photos-taken-b-013.jpg
“Non-humans cannot own copyrights.”
“This file is ineligible for copyright and therefore in the public domain,”
- Joseph Linaschke
  
  Oh that certainly is interesting. I’d still argue in court that Slater owns the copyright as he did set everything up for the purpose of taking these photos, and if it’s clear that non-humans can’t own the copyright, then it should be his to claim.
  
  Of course he also should have filed these with the copyright office before posting, but how many of us do that regularly.
catlett

This is nonsense. If the macaque killed somebody it wouldn’t get a trial. It doesn’t have human rights.
Polar01

Whos’ data appears on the images taken, I bet that is it David Slater.
Ahmet

So, can I sell any photo I find on the internet, if it was taken by any kind of trigger other than a human finger on the button? (AF trap, IR gate, timer, whatever) No.
Case closed.
Plantologist

Well, then we can get animals to come into forbidden places or into private properties, let them take photos (e.g. sound-triggered shots) and get the fun started. Lots of paparazzi would like that…
I really hope that WikiMedia loses this case…
CLN Photography

That’s like saying all the pictures I took while working for Lifetouch are mine, that I own the copyright instead of them.
Rebecca Tocci

That doesn’t make any sense – who would own the copyright of an image taken via motion sensor or other device where no-one pushes the shutter?
- Ali Koke
  
  The person who set the motion sensor or other device on