{"id":12848,"date":"2014-08-10T07:52:52","date_gmt":"2014-08-10T12:52:52","guid":{"rendered":"http:\/\/blogs.library.duke.edu\/scholcomm\/?p=12848"},"modified":"2014-08-10T07:55:43","modified_gmt":"2014-08-10T12:55:43","slug":"simian-selfie","status":"publish","type":"post","link":"https:\/\/blogs.library.duke.edu\/scholcomm\/2014\/08\/10\/simian-selfie\/","title":{"rendered":"About that simian selfie"},"content":{"rendered":"

By now, most people know about the macaque monkeys that took pictures of themselves in the Indonesian jungle, and the controversy over who, if anyone, owns a copyright in the resulting pictures.\u00a0 The events actually took place several years ago, but the popular news media has recently picked up the story because of threats by the photographer whose cameras were used, David Slater, to sue Wikipedia if the photographs, which Slater says are his intellectual property, are not taken down.\u00a0 Wikipedia refused his take down request, and the story has gone viral.\u00a0 I know a copyright story has penetrated into popular culture when I am asked about it at home, over the dinner table!<\/p>\n

\"la-fg-british-photographer-monkey-selfie-20140-001\"<\/a>There has been so much commentary, including an impassioned defense of the rights of monkey artists<\/a>, that I am hesitant to wade into the fray.\u00a0 But I think there are some lessons we can learn from both the story and people’s reaction to it; there is an opportunity here to remind ourselves of some basic principles about copyright law.<\/p>\n

So let my offer two comments about the controversy itself, and two comments about the public reaction to it.<\/p>\n

First — cards on the table — I am inclined to believe that these photos do not have any copyright protection because they lack any element of human agency.\u00a0 The fundamental principle of copyright law, stated very early in the U.S. law, is that copyright protects “works of authorship.”\u00a0 And although I never really thought the idea would be challenged, I think authorship implies human agency.\u00a0 There must be a spark of creative, a decision to create a work, for something to be a work of authorship, and these photos do not have that.\u00a0 The story has shifted a bit over time, but it does not appear that Mr. Slater gave his cameras to the monkeys deliberately.\u00a0 Even if he did, that could hardly be called a creative decision.\u00a0 He had no control over what they did with the cameras; they were as likely to smash them on the ground as to take pictures.<\/p>\n

In the well-known Feist<\/em> decision about the white pages of phone books, the Supreme Court discussed the idea of a work of authorship, and told us that mere hard work — sweat of the brow, as they said — does not by itself earn copyright protection.\u00a0 A work of authorship must be original in the sense of not copied, but it also must have a spark of human creativity.\u00a0 It need not be much, but some human decision is required.<\/p>\n

By the way, the Feist<\/em> decision is a roadmap to why Mr. Slater’s arguments about the money and effort that went into his photo-taking trip to Indonesia do not succeed in convincing me that he should have a copyright in these specific photos.\u00a0 His other argument, that the monkeys stood in the shoes of a hired assistant<\/a>, such that Mr. Slater should own the copyright in these photos as the “employer,” also fails, if it were ever seriously proposed. For one to be an independent contractor, human agency is again required.\u00a0 In U.S. law, there must be an explicit agreement before any copyrighted work created by an contractor could be considered work for hire.\u00a0 And monkeys do not have legal capacity to enter into a contract.\u00a0 This is a legal point; no matter how smart other creatures are or the degree to which humans should recognize animal rights, the law, including copyright and contract, deals with relationships between human beings.<\/p>\n

Human relations are the foundation of my other legal point about this situation.\u00a0 We need to remember that copyright has a specific incentive purpose; it is designed to reward creators so that they will continue to create.\u00a0 The law grants a government-enforced monopoly so that authors and other creators can make enough money to support their creative efforts.\u00a0 And this justification completely fails when the creator is not a participant in human society.\u00a0 Granting a copyright in a monkey-taken photograph would be a mockery of the incentive purpose of the law.<\/p>\n

Mr. Slater seems to argue the incentive purpose of copyright when he asserts that it takes a lot of hard work and investment to be a photographer, and only a few of the many photos he takes will make any money.\u00a0 All true, I am sure, but not relevant.\u00a0 This is not a photo that he took, and it does not meet the standard of a work of authorship eligible for the peculiar legal structure we humans call copyright.\u00a0 Many reactions to this story have focused on the idea that it is somehow unfair to deny Mr. Slater profit from the photo.\u00a0 But copyright law is not about fairness, nor does it exist to reward industry or protect an investment.\u00a0 Laws are passed for many purposes, and fairness is often well down on the list of reasons.\u00a0 It is silly to expect to be able to use copyright to leverage some result considered “fair” in every situation that involves an (apparently) creative work.<\/p>\n

My final observation about the reactions this story has provoked is actually eloquently made by Mike Masnick of TechDirt when he writes about “How that monkey selfie reveals the dangerous belief that every bit of culture must be owned<\/a>.”\u00a0 It is curious to see how uncomfortable many people are with the idea that no one at all owns these photos; that they are therefore the property of everyone.\u00a0 Perhaps it is the unfortunate influence of the big content industries that makes some people uncomfortable with the idea of the public domain.\u00a0 One of the early articles in this new round of media coverage asked its readers to vote on who owned the copyright in the photo.\u00a0 Most voters split between Mr. Slater and the monkey, with less than 17% being willing to assert that no one owned it, it was in the public domain.\u00a0 And apparently Wikipedia has decided to let the public vote<\/a> on continuing to make the photo available.<\/p>\n

Maybe the real lesson we should take from this silliness is that the public domain is real, and it is important.\u00a0 Much of human culture would not have been possible without free access to our shared literary and artistic heritage.\u00a0 The U.S. Constitution builds a public domain in to the very words by which it gives Congress the power to pass copyright laws, by requiring that those rights be “for a limited time.”\u00a0 We cannot have copyright without a public domain; to attempt that would be cultural suicide.\u00a0 So we need to learn not just to accept the public domain, but to celebrate it.\u00a0 Perhaps that is why the monkey is smiling,<\/p>\n

<\/h1>\n","protected":false},"excerpt":{"rendered":"

By now, most people know about the macaque monkeys that took pictures of themselves in the Indonesian jungle, and the controversy over who, if anyone, owns a copyright in the resulting pictures.\u00a0 The events actually took place several years ago, but the popular news media has recently picked up the story because of threats by … Continue reading About that simian selfie<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":122,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[26,35],"tags":[],"class_list":["post-12848","post","type-post","status-publish","format-standard","hentry","category-copyright-issues-and-legislation","category-public-domain"],"yoast_head":"\nAbout that simian selfie - Scholarly Communications @ Duke<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/blogs.library.duke.edu\/scholcomm\/2014\/08\/10\/simian-selfie\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"About that simian selfie - 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