A few years back, wildlife photographer Dave Slater captured an image of a rare black macaque monkey known as the Monkey Selfie that went viral.  Slater had traveled all the way to Indonesia and spent many days embedded with the monkeys in order to gain their trust and capture candid shots of them.  Once the monkeys became accustomed to Slater, they became fascinated with his camera.  Amused with the noises the camera made, one monkey actually ended up successfully taking a “selfie,” which meant that the monkey had taken a self-portrait with the digital camera. 

Although the monkey was merely fascinated with the whirring and clicking noises that the camera made, the monkey had unwittingly taken a perfect “selfie” that showed itself grinning in the frame. The photograph went viral.  After all was said and done, the photograph was shared and published internally more than 50 million times.  Instead of bringing Slater prosperity and financial fortune, however, the selfie became the topic of heated debate among animal rights activists and legal experts.  As it turns out, the legal battle over the Monkey Selfie is far from over.

Who Owns the Rights to a Monkey Selfie?

For six years, Slater has had to defend himself against copyright infringement lawsuits that allege that the black macaque monkey is actually the photographer, and as such, the owner of the copyright.  Slater’s legal troubles began when technology giants, Techdirt and Wikipedia, published the image without Slater’s consent.  When Slater attempted to assert his copyright rights and ask them to remove the photograph from their websites, the two companies refused under claims that Slater was not the rightful copyright owner; Slater went on to sue them for copyright infringement.

Can a Non-Human be a Copyright Author and Own Original Copyrights?

Traditionally, the legal field has stated that whomever creates the photograph, the monkey in this case, generally owns the copyright.  Without explicit licensing or assignment of rights in the copyright, the creator of the piece generally retains rights to the work.  Slater, however, argues that he should own the copyright because it was his equipment, his creativity, and his idea to let the monkeys play with the camera.  But copyright law generally does not acknowledge such contributions when determining copyright ownership.  And further, because copyright law does not extend protection to animals, legal experts contended that neither the monkey nor Slater could rightfully assert intellectual property rights in the photograph.

Can a Third-Party Asserts Rights to the Monkey Selfie on behalf of the Primate?

Despite this, People for the Ethical Treatment of Animals (“PETA”) also joined into the legal fray.  They alleged that, as an organization created to protect animal rights, they would better serve as custodians of the intellectual property rights of the black macaque.  As such, PETA petitioned the court to allow them to assert rights on behalf on the monkey.  And even though they lost their original suit, they have since appealed the verdict and are currently back in court this year.  If successful, PETA may end up controlling the Monkey Selfie despite Slater’s effort and equipment usage.

Technology Continues to Drive Copyright Law

As technology continues to improve to the point that the mere click of a button on a phone can create works of art in a tangible medium, similar questions of law and intent will continue to arise.  For instance, plenty of babies unwittingly create “selfies” in the same way that this monkey did and similarly lack the same understanding or knowledge of what they have done.  Would the parent/guardian then own the copyright to the photograph because the child is too young to enter into a binding legal agreement?  By contrast, if a teenager purposefully creates a selfie and it goes viral, do the parents similarly own the copyright?

These copyright protection questions have yet to be fully answered and tested in a court of law.  As such, it would be wise for artists to consult experienced intellectual property counsel as failure to do so may result in financial disaster.  Slater’s tale currently stands as a cautionary tale as he has already lost thousands in trying to defend himself against these legal battles.

For additional discussion of the surprising number of legal issues involving selfies, see our article, Selfie Legal Issues.

http://www.klemchuk.com/774-selfies-unexpected-legal-issues/

See our additional posts on the Monkey Selfie saga, Monkey Does Not Own Copyright to Monkey Selfie, Court Rules and Even A Monkey Can Do  It? A Copyright Fight Over Monkey Selfie.

For more information on this topic, please visit our copyright protection service page, which is part of our Software & Copyrights Practice.