By Dan Haggarty

People tend to anthropomorphize animals. Whether a pet owner believes their canine can understand a complex conversation, or that their cat created a work of art, humans often give animals the benefit of the doubt that their thoughts and intentions are as complex as ours. Whether or not animals are capable of originality or creativity, it raises the question: can a person claim a copyright in a work created, at least in part, by an animal? This issue has recently become the center of a legal controversy after a wild monkey took several amazing photographs with a professional photographer’s camera.

David Slater had been following a group of crested black macaque monkeys in the jungles of North Sulawesi, Indonesia for several days while on a photography trip in 2011.¹ At one point, Slater left his camera unattended. A monkey later seized it and took hundreds of photos, including the famous “Monkey Selfie”.² After the photos were released, they ended up on Wikipedia Commons, a website that collects public domain images for Wikipedia.com.³

Slater demanded the photos be removed from the website.⁴ Wikimedia Commons evaluated the request and denied it, taking the position that “the image file is in the public domain because, as the work of a non-human animal, it has no human author in whom copyright is vested.”⁵ Slater is considering legal action in U.S. court and claims that he has lost “tens of thousands of pounds” as a result of the file being hosted and available for download on the Wikimedia Commons website.⁶

After the story was originally reported on in July of 2011⁷, Slater published a press release stating that he set up an environment for the pictures to be taken, and intended for the monkeys to take pictures of themselves.⁸ This raises an interesting question as to whether Slater should own a copyright in the photograph. If Slater intentionally set the stage in the jungle and manipulated the environment for the photographs, United States copyright law precedent may favor the images as copyrightable subject matter.

U.S. Copyright Law and Photography: An Overview

Copyright protection covers “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”⁹ This principle stems from the United States Constitution, which grants exclusive rights to useful arts for a limited period of time.¹⁰ A copyright exists the moment an original work of authorship is created, and allows the owner to monopolize the utility of it.¹¹ At first glance this concept appears simple, but the history of U.S. copyright law and photography highlights the challenges of determining authorship and originality, which are key components of copyrightable subject matter.¹²

History of Copyrights and Photography In the United States

The concept of copyright protection is older than the United States itself. In the fifteenth century, the Venetians granted a type of legal copyright to individuals during the same era as the printing press revolution.¹³ In England, the crown granted letter patents directly to select citizens prior to the existence of the United States.¹⁴ In 1710, England enacted the Statute of Anne, which recognized a formal, exclusive statutory copyright in certain works.¹⁵ English statutes and case law ended up being influential, and in some instances adopted, in the creation of early copyright laws in the United States.¹⁶

The question of whether a copyright can exist in a photograph has been well settled. Copyright protection stems from the U.S. Constitution, but the invention of the camera did not come until much later. Indeed, the first patent for a camera in the United States was not issued until 1840, or 53 years after the signing of the Constitution.¹⁷ . Congress first recognized that photographs were copyrightable subject matter in 1865.¹⁸ Photographs were officially included in the Copyright Act of 1870, stating that “any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or negative thereof, shall upon complying with the provisions of this act, have the sole liberty of printing, reprinting, and vending the same.”¹⁹

This newly legislated concept was challenged and affirmed in the U.S. Supreme Court case Burrow-Giles Lithographic Co. v. Sarony,²⁰ one of the seminal cases regarding the ability to copyright a photograph.²¹ Sarony was a photographer who entered into an agreement with famed author Oscar Wilde to take a picture of him.²² Without permission, the Burrow-Giles Lithographic Company reproduced 85,000 copies of the photograph in an attempt to profit from the sale of them.²³ There was no question that Sarony took the photograph, and he had even inscribed his name and the necessary copyright information on the original image.²⁴ Burrow-Giles Lithography challenged that a photograph was not a writing within the meaning of the Constitution, and was therefore not subject to copyright protection.²⁵ They further argued that a photograph is not produced by an author.²⁶

Article 1, §8, clause 8 of the U.S. Constitution empowers congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”²⁷ Within the plain language of the law, Burrow-Giles Lithography appeared to have had a valid point: a photograph is not a writing.

In addressing this issue, the Court in Sarony looked at the Founding Fathers’ intent when drafting the clause in dispute.²⁸ They found that immediately after the signing of the Constitution, the first Congress of the United States enacted legislation extending copyright protection to maps, charts, and books.²⁹ This Act was amended two years later, and further added that anyone who invents and designs, engraves, etches, or works, shall enjoy the same exclusive right to print or create derivative works.³⁰ Because these laws and amendments were created by some of the very framers of the Constitution and their contemporaries, the court determined that a photograph could not be distinguished from a map, chart, design, engraving, etching, or other print.³¹ It then followed that a writing was not constrained merely to books and texts, and the exclusion of photographs in the Constitution was a product of the simple fact that they had not yet been invented.³² The Court held that “by writings in that clause it is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writing, printing, engravings, etchings, etc., by which the ideas in the mind of the author are given visible expression.”³³

With a broader interpretation of what constitutes a writing, the Court then defined an author as a person “to whom anything owes its origin; originator; maker; one who completes a work of science or literature.”³⁴ While Sarony was clearly the author in this regard, the Court also considered whether the subject matter of the photograph met the requisite “usefulness,” or originality to be copyrightable.³⁵ The Court found that the manner in which the photo was taken was completely of Sarony’s mental conception.³⁶ Because he selected and arranged the costume, draperies, accessories, lighting and even the expression of Oscar Wilde, the Court reasoned that the photograph was the product of Sarony’s intellectual creation and thus sufficiently original.³⁷

The Court concluded that photographs were copyrightable subject matter and that Sarony met the requirements of authorship and originality necessary to hold the exclusive monopoly to the photos.³⁸ This case was significant because it affirmed that photographs were capable of copyright on a constitutional basis. However, the issue of originality still required some legal clarity.

It is important to note that not all photographs are entitled to a copyright. Originality tends to be an easy standard to meet, but in certain rare instances, a photograph lacks the requisite originality to be protectable.³⁹ The low bar for originality found its roots in the Supreme Court case Bleistein v. Donaldson Lithographing Co.⁴⁰ The Court addressed whether a picture of people at a circus that was used on an advertisement was proper subject matter capable of copyright protection.⁴¹ The Court found that a photograph is original when the photographer captures people in a specific moment because personality is always a unique attribute specific to a time and place.⁴² In making this determination, the Court reasoned that a photograph is often a “personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.”⁴³

Judge Learned Hand best synthesized the holding in Bleistein by articulating that “no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike.”⁴⁴ This understanding of the Bleistein holding has been generally adopted throughout the courts and has loosened court-held standards of originality in authorship.⁴⁵

Even with a broadened definition of originality, courts have shown a subjective willingness to assert that originality does not exist in certain photos, such as images of Chinese food dishes that are commonly seen in restaurants.⁴⁶ In this instance, it was held that pictures of food hold no creative spark, but rather merely served to inform customers of items for sale.⁴⁷ This ruling was more of a matter of policy than grounded in constitutional analysis. The court voiced their concern that if pictures of Chinese food were copyrightable, it would preclude other restaurants from being able to display pictures of their food.⁴⁸

Whether or not judges are qualified to determine the merits of originality in a photograph is subject to debate, however the history of copyright legislation and case law has shown that the law is willing to evolve with modern concepts, and generally only requires marginal standards of originality for a work to be copyrightable. With a basic understanding of copyright law and photography, Slater’s claim to a copyright in the monkey photos may not be as preposterous as the Wikimedia foundation has claimed.

Slater’s Copyright Claim In The Photo

Under United States law, Slater must show authorship and originality to hold a copyright in the photographs.⁴⁹ Without authorship, there can no creativity.⁵⁰ While not a high standard to meet, Slater must establish that his work was an independent creation in addition to the work containing a modicum of creativity.⁵¹

The Compendium of U.S. Copyright Office Practices is a document that outlines the rules and interpretations of the U.S. Copyright Office, explicitly states that copyrights require human authorship.⁵² According to the compendium, works produced by nature, animals, plants, or supernatural beings cannot be copyrighted.⁵³ This document is not binding law per se, however it clearly articulates the Copyright Office’s position on Slater’s predicament. In fact, the compendium lists specific examples of non-copyrightable works.⁵⁴ Such examples include a photograph taken by a monkey, a mural painted by an elephant, driftwood shaped by the ocean, and claims based on cut marks, defects, or other qualities found in natural stone.⁵⁵ However, even with the human authorship requirement, Slater could arguably still be the author.

Was Slater the Author?

If Slater lacks authorship, then he cannot hold a copyright in the photographs. The varying accounts of the creation of the photos complicate the analysis of whether or not he could be the author for purposes of a copyright. If the original report of events in the news was accurate⁵⁶ and he had no intention of creating the works, then he would likely not hold a copyright in the photographs. However, Slater’s personal account of the events make a better case for his ability to hold a copyright in the photos, and raises a unique issue: does the act of pressing a button determine who the author is?

Per Slater’s press release, he states to have directly interacted with the monkeys for about a half hour.⁵⁷ During this time, he anticipated that the monkeys would play with his camera, so he attached a wide-angle lens, flashgun, and a tripod to it.⁵⁸ He then configured the camera settings and held on to the tripod while letting the monkeys play with the camera.⁵⁹ This was done with intent to set the stage for up-close photos, should a monkey take any photos.⁶⁰ Had Slater pressed the button, he certainly would have had the requisite originality and authorship articulated in Sarony and Bleistein.

Does it really matter whether Slater pressed the button on the camera? Instructive participation can establish authorship in a work.⁶¹ Courts have found authorship in scenarios where the ideas of an author are carried out through their will, instruction, and ideas, even when the author does not physically create the work.⁶² Further, courts have held that “where a plaintiff alleges that he exercised such a high degree of control over a film operation—including the type and amount of lighting used, the specific camera angles to be employed, and other detail-intensive artistic elements of a film—such that the final product duplicates his conceptions and visions of what the film should look like, the plaintiff may be said to be an “author” within the meaning of the Copyright Act.”⁶³

Based on Slater’s account, he adjusted the lighting, angles, and other specific details necessary to employ his vision as specified in other cases.⁶⁴ The fact that a monkey pressed the button on his camera should not be dispositive toward whether he can own a copyright in the image. Slater should be considered the author because, without his interactions with the monkeys and equipment adjustments to set the stage for the pictures, there would be no photos.

It could be argued that Slater could not have predicted what the monkey would do with any degree of certainty, and lost control of his vision once the wild animal started playing with his camera. However, courts have held that authors may adopt unintentional variations of an intentionally created works as their own for purposes of authorship.⁶⁵ For example, a photographer might reactively shake in fear over an unexpected bolt of lightning or the roar of a tiger, thereby altering the intended final product of their shot. In this scenario, the photographer likely holds a copyright in the image.⁶⁶ If a human can claim authorship in a work unintentionally altered by nature, Slater should still be able to claim authorship.

If the Copyright Office takes the position that Slater cannot be the author because he did not press the button on his camera, it would be incongruent in logic to another crucial component of copyright law. A work made for hire⁶⁷ vests a copyright in an individual or entity that was not necessarily the actual author of the work itself.⁶⁸ For example, an employee of Disney might create, develop, and draw a cartoon, but Disney is nonetheless considered the author on the copyright certificate.

The black crested macaque was not, and could not be an employee or agent of Slater because it lacked the capacity to enter into a contract. However, the concept of a work made for hire exemplifies a legal fiction where copyright law is willing to treat a person who is not the actual creator of a work as the author. As a matter of policy, if a wildlife photographer is able to get an animal to aid in his or her photography, they should be able to a copyright in their work, provided the photographer adequately influenced the variables of the environment.

Slater should be considered the author of the photographs regardless of a change in the Copyright Office’s policies. As case law has illustrated, there is no requirement that the author press a button on a camera, but rather that he or she envisioned the photographs and manipulated the environment to create the final work. In an instance where Slater only provided a camera, and the black crested macaque monkey did the rest; there would certainly be no copyright. The facts indicate that Slater contributed more than a mere piece of equipment, though. Assuming Slater met the requisite requirements of originality, he should be entitled to copyright protection in the photographs.

Did Slater’s Photographs Exhibit Originality?

For a work to be original for purposes of copyright law, it simply has to be independently created by the author and possess at least a minimal degree of creativity.⁶⁹ The requisite level of creativity is extremely low, and even a slight amount will suffice.⁷⁰ In fact, if an author’s independent efforts are interesting enough to motivate another to copy their work, it could be considered ipso facto sufficiently original to support a copyright.⁷¹ There have been narrow exceptions where works have been found to lack originality, e.g. Pictures of Chinese food, but such circumstances are rare and the rationale in those cases may be flawed.⁷²

Slater’s work could be original even if it was created unintentionally. If we are to assume that a monkey may not have taken photos in line with Slater’s artistic vision, the independent effort that constitutes originality may be inadvertent and still satisfy the requirements of a copyright.⁷³ If Slater’s contributions to the environment and interaction with monkeys to obtain a photo had even a marginal amount of creativity, and even if the results occurred by accident, a copyright should still exist in the work. Slater’s photos should meet the requirement of originality because of his creative choices in setting up the area and equipment, regardless of whether the black crested macaque’s photographs were intentional, or simply an unintended reaction to stimuli.

Conclusion

Slater meets the requisite elements of authorship and originality necessary for a copyright in the photographs. Slater modified his environment and made the contributions necessary to be construed as the author of the photographs. His work was original because of the marginal requirements necessary for a showing of originality combined with his influence on the independently created photographs.

While the United States Copyright Office appears unwilling to award a copyright in a photograph taken by a monkey according to their internal policy manual, it can still be challenged in court. There is an excellent case to be made that Slater is entitled to a copyright in the photographs taken by the black crested macaque because of his influence and contributions that led to the ultimate creation of the works.

Courts have been unwilling to find originality on certain works as a matter of policy in the past. If Slater were to take his case to court and lose, it may very well be the result of public policy trumping stare decisis. If Wikipedia wins the legal battle over the monkey selfies, professional photographers lose. The idea that an image is not copyrightable because an animal pressed the button is absolutely bananas.

* Daniel Haggarty is a student at Golden Gate University School of Law. He is currently completing his Juris Doctor with a specialization in Intellectual Property. The author would like to express his appreciation to Richard Greenstone for his guidance, input, assistance, and for editing this article.

1. Cheeky Monkey! Macaque borrows photographer’s camera to take hilarious self-portraits, Daily Mail (Mar. 2, 2014, 10:06 AM), http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borrows-photographers-camera.html.
2. Id.
3. Id.
4. Sophie J. Evans, Wikipedia rejects photographer’s claim of copyright over famous monkey selfie – on the grounds that the ape took it! Daily Mail (Mar. 2, 2015, 10:15 AM) http://www.dailymail.co.uk/news/article-2718120/Photographer-demands-Wikipedia-remove-famous-photograph-monkeys-selfie.html.
5. Id.
6. Monkey Selfie – Photographer takes on Goliath, Press Release, DJS Photography (Mar. 2, 2015, 10:20 AM), http://djsphotography.co.uk/Press_Release.zip.
7. Cheeky Monkey! Macaque borrows photographer’s camera to take hilarious self-portraits, Daily Mail (Mar. 2, 2015, 10:09 AM), http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borrows-photographers-camera.html.
8. Sulawesi Macaques…, Press Release. DJS Photography (Mar. 2, 2015, 10:22 AM), http://djsphotography.co.uk/Press_Release.zip.
9. 17 U.S.C. §102(a).
10. U.S. Const. art. I, § 8, cl. 8.
11. William F. Patry, Patry on Copyright § 1:1 (2014).
12. 17 U.S.C. §102
13. William F. Patry, 1 Patry on Copyright § 1:2.
14. William F. Patry, Patry on Copyright § 1:5-6.
15. William F. Patry, Patry on Copyright § 1:6.
16. William F. Patry, Patry on Copyright § 1:5.
17. U.S. patent application No. 1,582. Alexander S. Wolcott filed a patent for a new and imrpoved method of “taking likenesses from life.” This is recognized as one of the first patents for a camera.
18. Copyright Enactments, U.S. Copyright Office 35,35 (1973), http://copyright.gov/history/Copyright_Enactments_1783-1973.pdf (explaining the history of photography and U.S. copyright law).
19. Id.
20. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 54, 4 S. Ct. 279, 279, 28 L. Ed. 349 (1884)
21. Id. (holding that photographs are capable of copyright under art, § 8 of the United States Constitution).
22. Id.
23. Id.
24. Id.
25. Id.
26. Id. at 56
27. U.S. Const. Art. I, § 8, cl. 8.
28. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56, 4 S. Ct. 279, 280, 28 L. Ed. 349 (1884).
29. Id. at 57.
30. Id.
31. Id. at 58.
32. Id.
33. Id.
34. Id.
35. Id. at 59.
36. Id. at 60
37. Id.
38. Id. at 61
39. John W. Hazard Jr. Copyright Law in Business and Practice § 2:59 (rev. ed. 2014)
40. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250, 23 S. Ct. 298, 300, 47 L. Ed. 460 (1903).
41. Id.
42. Id.
43. Id.
44. Jewelers’ Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932, 934 (S.D.N.Y. 1921) (holding that virtually all photographs are sufficiently original by virtue of the author’s personal influence.
45. John W. Hazard Jr. Copyright Law in Business and Practice § 2:59 (rev. ed. 2014) citing Los Angeles News Service v. Tullo, 973 F.2d 791, 20 Media L. Rep. (BNA) 1626, 24 U.S.P.Q.2d (BNA) 1026 (9th Cir. 1992) (“We have stated before that the courts have recognized repeatedly that the creative decisions involved in producing a photograph may render it sufficiently original to be copyrightable and ‘have carefully delineated selection of subject, posture, background, lighting, and perhaps even perspective alone as protectable elements of a photographer’s work.” Los Angeles News Service v. Tullo, 973 F.2d 791, 794, 20 Media L. Rep. (BNA) 1626, 24 U.S.P.Q.2d (BNA) 1026 (9th Cir. 1992), citing U. S. v. Hamilton, 583 F.2d 448, 452, 200 U.S.P.Q. (BNA) 14 (9th Cir. 1978).
46. William F. Patry, Patry on Copyright § 3:118 (2nd ed. 2014) citing Oriental Art Printing, Inc. v. Goldstar Printing Corp., 175 F. Supp. 2d 542 (S.D. N.Y. 2001).
47. Oriental Art Printing Inc. v. GS Printing Corp., 34 F. App’x 401 (2d Cir. 2002).
48. Id.
49. U.S. Const. art. 1, § 8, cl. 8.
50. See generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 111 S. Ct. 1282, 1285, 113 L. Ed. 2d 358 (1991) (holding that without authorship, there cannot be originality; the constitutional requirements for copyright necessitate an independent creation in addition to a modicum of creativity).
51. Id.
52. Compendium of U.S. Copyright Office Practices§ 306 (3rd ed. 2014).
53. Id.
54. Id.
55. Id.
56. Cheeky Monkey! Macaque borrows photographer’s camera to take hilarious self-portraits, Daily Mail (Mar. 2, 2015, 10:25 AM), http://www.dailymail.co.uk/news/article-2011051/Black-macaque-takes-self-portrait-Monkey-borrows-photographers-camera.html.
57. Sulawesi Macaques…, Press Release. DJS Photography (Mar. 2, 2015, 10/22 AM), http://djsphotography.co.uk:Press_Release.zip.
58. Id.
59. Id.
60. Id.
61. Fisher v. Klein, No. 86 CIV. 9522 (PNL), 1990 WL 10072477, (S.D.N.Y. 1990) (holding that in certain situations, an author instructing his creative idea be carried out can establish requisite authorship).
62. Id.
63. Lindsay v. Wrecked & Abandoned Vessel R.M.S. TITANIC, No. 97 CIV. 9248 (HB), 1999 WL 816163, at *5 (S.D.N.Y. Oct. 13, 1999).
64. Id.
65. Cf. Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 105 (2d Cir. 1951) (“A copyists bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the author may adopt it as his and copyright it.”).
66. Id.
67. 17 U.S.C. § 101 (“A “work made for hire” is (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”)
68. William F. Patry, Patry on Copyright § 5:44 (2nd ed. 2014) (“A significant departure from the ordinary rule that the author is the individual who creates the work is found in the case of a work made for hire.”)
69. M. Nimmer & D. Nimmer, Nimmer on Copyright § 2.01 (2014).
70. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S. Ct. 1282, 1287, 113 L. Ed. 2d 358 (1991).
71. M. Nimmer & D. Nimmer, Nimmer on Copyright § 2.01 (2014) (discussing that the Bleisteindoctrine’s concept that judges may not properly ascertain artistic metit, combined with the holding in Alfred Bell & Co. v. Catalda Fine Arts, Inc. that originality is little more than a prohibition on copying others work due to the low standard for originality, is ipso facto evidence of originality for a copyright.)
72. William F. Patry, Patry on Copyright § 3:118 (2nd Ed. 2014) (explaining that the holding in Oriental Art Printing, Inc. v. Goldstar Printing Corp., 175 F. Supp. 2d 542 (S.D. N.Y. 2001) was incorrect because “the nature of photographic authorship is not at all dependent upon or influenced by the uniqueness or even protectability of the objects photographed.”)
73. M. Nimmer & D. Nimmer, Nimmer on Copyright (2014)§ 2.01 (citing Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 105 (2d Cir. 1951) “A copyists bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the author may adopt it as his and copyright it.”)