Asia IP

A simmering dispute about ownership of a copyright in photographs has now garnered international attention. As more fully reported in an article in the British newspaper The Telegraph, British photographer David Slater has stated that he intends to bring a copyright infringement suit in the US against Wikimedia, the nonprofit entity behind Wikipedia, focused on photographs taken by a crested black macaque monkey in Indonesia in 2011. Slater had been in Indonesia on a photo shoot when his camera was grabbed by a monkey which then took some amazingly good selfies with Slater’s camera. Some of these photographs can be seen on Slater’s website, the Wikimedia website, and in The Telegraph article. Slater claims to own the copyright in the photos because he owned the camera with which it they were taken. Wikimedia claims that the photographs are not protected by copyright and are in the public domain since they were taken by a monkey, and not a human. Accordingly, it has refused Slater’s requests to remove the photographs from the Wikimedia site.

To begin this discussion, it is important to note that there is no “international” copyright law, and that each country makes its own specific law on this topic. There are international treaties and conventions which govern reciprocity of rights for authors on an international basis. However, those rights are still based on the individual copyright law in each jurisdiction. Under US copyright law, the owner of the copyright in an original work of authorship is the “author” of the work. The author is considered the individual who actually created the tangible work protected by the copyright. In the case of a work “made-for-hire,” an employer is considered the “author” and, therefore, the owner of the copyright in works created by an employee within the scope of his or her employment responsibilities. There are also other certain types of specially ordered or commissioned works that may also be considered “works-for-hire.”

In this case, Wikimedia takes the position that since the monkey actually created the photographs at issue, Slater cannot claim to be the “author” of the photographs and cannot claim copyright ownership in them. Moreover, since the photographs were actually the work of a “nonhuman animal,” Wikimedia claims “there is no human author to claim ownership” and the photographs are in the public domain. There is no statutory provision in US copyright law addressing this issue. However, as far as the US Copyright Office is concerned, in order to be entitled to copyright registration, a work must be the product of “human authorship.” This position, which is set forth in in Section 503.03 of Compendium II of Copyright Office Practices, also states that works produced by mechanical processes, by random selection without any contribution by a human author, and works owing their form to forces of nature and lacking human authorship are not registrable. The US Copyright Office, in its recently issued draft of the Third Edition of the Compendium, confirmed that it will not register any works “produced by nature, animals or plants” or “divine or supernatural beings.” The draft focuses on the “human authorship” requirement, stating that US copyright law will protect only “the fruits of intellectual labor” that “are founded in the creative powers of the mind.”

Slater also argues that he owns the copyright in the photographs because of his significant financial investment in equipment and the photo shoot at which his camera was used to take the photograph. However, there is also no statutory provision in US copyright law to support such a position. In Feist Publications v. Rural Telephone Service, the US Supreme Court dismissed a somewhat analogous argument that was made to support a claim of copyright in a white pages phone directory. In that case, the company who had put together the original directory sued a company who copied 4,000 entries from the original directory into its own phone directory. The issue in that case was not copyright authorship but whether there was enough originality in the phone directory for it even to be protected by copyright. The Court shot down the “sweat of the brow” or “industrious collection” doctrine put forth by the publisher of the original directory as irrelevant, stating that the copyright law was not intended to “reward” the efforts of persons not otherwise entitled to claim copyright protection. Rather, the intent, as set forth in the US Constitution, was to encourage creative expression. Thus, regardless of how much time, effort and money had been spent to compile the original phone directory, the company could not claim ownership of a copyright in it since it did not meet the threshold level of “originality” required to be protected by copyright. This reasoning might provide some support for Wikimedia’s position that although Slater may have spent a great deal of time, effort and money on equipment and travel for the trip that lead to the creation of the photographs at issue, he cannot claim to own the copyright in photographs he did not take himself.

It is doubtful Slater will monkey around with this for too much longer before taking legal action. As always, we will keep you apprised of all developments.

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About the Author

Susan Neuberger Weller is a Washington-based member of Mintz Levin Cohn Ferris Glovsky and Popeo, where she manages the firm’s trademark practice. Her practice involves all aspects of intellectual property and related corporate business transactions, with a particular emphasis on domestic and international trademark and copyright searching, prosecution, enforcement, counseling, and litigation.