Going Ape Over a Photograph’s Copyright

The infamous Macaca Nigra selfie (via Wikimedia)

Apparently Wikimedia, the US-based organization behind Wikipedia, is refusing to remove an image of a monkey taken by … wait for it, wait for it … the monkey itself.

The requests for the take-down come from David Slater, a British nature photographer, who alleges that he owns the copyright to the image and that therefore, without his consent, Wikimedia should stop distributing this image. So who owns the copyright to this image?

This is every copyright professor’s dream law exam scenario: you have a photograph taken by an ape, where the camera is owned by someone else (in this case, a human being), and that human being is a British national. Then, the photograph is taken in Indonesia and distributed by a US-based organization. So which copyright law applies?

Great question. Under US-based law it will be very difficult to argue that an animal can create a copyrightable work, primarily because it wouldn’t be considered an “author” under law (authorship under copyright must contain some expressive content). And even if the ape could create a copyrightable work, how would it police it or enforce restrictions on it, if any? How would it license the image? And how would we know the monkey wouldn’t want its image to be made freely available via the public domain?

So why is Slater so sure he owns the copyright? Probably because he owns the camera used by the monkey.

Unless there’s US-based litigation, we will not have a legal opinion on this matter. I just wish artist Richard Prince would look to more apes like this for source material. After all, it would be very unlikely that the ape would bring a copyright infringement suit.