Monkey Business

You might have heard the recent story about the dispute between British photographer David Slater and Wikimedia where the copyright of a picture of a monkey has been called into question.  There are numerous stories written on this topic, but here is one story from NPR that sums it up: If A Monkey Takes A Photo, Who Owns The Copyright?  Basically a crested black macaque used David Slater's camera to take numerous selfies (one of which is published in the NPR story), and Wikimedia refused to recognize copyright status on those images, posting his images as open source material.  Despite David Slater arguing that in order for him to get the photos, he had to travel to Indonesia and set up the camera, the dispute went on.  Recently the United States Copyright Office issued a new Compendium of Copyright Office Practices which states in section 202.02b Human author:

The term "authorship" implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.

I am not a lawyer, nor have I recently stayed at a Holiday Inn Express, but it appears to me that the dispute is really around authorship, where Wikimedia interprets the authorship of the photo to be the macaque which does not have legal standing, and therefore nobody technically "owns" the photos.

From what I've read, there are different accounts of the story.  On the one extreme, the situation was portrayed as the macaque grabbing David Slater's camera and taking hundreds of shots willy nilly, so Wikimedia argues that authorship was not attributed to a human being.  On the other extreme, David Slater asserts that he put himself in that specific situation to photograph the macaques, and he set up the camera, while the macaques simply pushed the shutter release.

I have no objection to the US Copyright Office definition of human authorship.  I think the dispute lies in the interpretation of the origin of the photos--were they produced SOLELY by the animal, or did the human play some role?  I would argue that David Slater played a significant enough role that he could claim to be the author of the photographs.  To me, photography is more than just pressing a shutter release button.  Rather, it encompasses all the preparatory work including identification of one's subject and its environment, adjusting camera settings to produce the desired effects, interacting with the subject, composition, and numerous other things besides clicking a button.  I really don't know all the details of what happened, but based on what I've read, I believe that David Slater did enough to claim authorship and that he rightfully owns those photos.

It would be interesting to know how a judge would rule on some related scenarios:

• Someone sets up a motion-triggered camera to capture nighttime infrared images of the elusive snow leopard.  I would argue in favor of human authorship because the human set up the motion sensors for the purpose of capturing the photos.
• Someone mounts a camera on a tripod with the intention of having a monkey approach the camera and press the shutter release on its own.  This may be because the monkey does not smile when confronted by a human, but it will smile when humans are at a far enough distance away.  Again, I would argue in favor of human authorship because of intent to capture the image and all the preparatory work that went into image capture.  What the monkey does in this situation is the same as David Slater's situation--it presses the shutter release.  The only difference may reside in the photographer's intent.  Did David Slater intend for the macaques to take the selfies?  Could this information could be material to the case?

Another interesting consideration is whether anyone other than David Slater could actually know whether any individual exposure was taken by the macaque or by David Slater himself.  It appears that he has related a story in which the macaque grabbed the camera and started shooting selfies.  But what if the information was never publicized?  How could a viewer know whether the photo was taken while hand-held, tripod-mounted, motion-triggered, or in the mischievous hands of a black crested macaque?  One would have to assume copyright ownership resides with the human in possession of the original photos unless human authorship is brought into question.

In conclusion, I side with David Slater on this issue.  I believe that he had a significant enough influence on the situation such that the photos were not produced SOLELY by the animal.  It just feels wrong to conclude that David Slater does not own those photos.

What are your thoughts on this situation?  Don't everyone chime in all at once.