Asked & Answered: Michael Spink on a Monkey's Selfie and Copyright Law

 By Steve Thorpe

Legal News
 Wikimedia, the non-profit organization behind Wikipedia, has refused a photographer’s repeated requests to stop distributing his most famous shot for free because a monkey pressed the shutter button and, the group claims, should own the copyright. In 2011, British photographer David Slater was in Indonesia to take pictures of crested black macaques. During a session, one of the primates was examining his equipment, grabbed a camera and took hundreds of “selfies,” including one that went viral on the Internet and social media. Michael Spink of Brinks Gilson & Lione in Ann Arbor practices in intellectual property law focusing on procurement, licensing and opinions on patents, trademarks and copyrights. He chairs the firm’s Intellectual Asset Management group.
Thorpe: So, no monkeying around, does the macaque have a tail to stand on or is Wikimedia bananas to make the claim?
Spink: While the thought of a monkey owning a copyright has mass a-peel, some would say it would make a macaquery of the legal system. I also note that since the photograph was taken in Indonesia, the copyright laws of Indonesia would likely apply to ownership of the photograph. Applying U.S. copyright law to these facts, the macaque cannot own the copyright because the U.S. Constitution and Copyright Act apply to “persons” and “the people.” Wikimedia might get its silver-back for defending these claims.
Thorpe: A professor at Columbia Law School and another at New York University Law have both said that because there was no “human authorship” the image is in the public domain. Is it that open and shut, or are there exceptions? Spink: One exception could be if the photograph is proven to be a “joint work,” which would make Slater, the human photographer, a co-owner. In a joint work, each author has full rights to exploit the copyright. To be a co-author, the person must have made a substantial creative contribution to the work and intended that the contribution was to be merged with the contributions of the others. For example, if Slater manually set the exposure, chose the lens, helped point the camera, or gave some other creative assistance, he may have made a sufficient contribution to be a co-author. The question is: “how much did Slater ‘collaborate’ with the macaque?”
Thorpe: When Ellen DeGeneres set up her famous Oscars selfie, it was generally agreed that the copyright on the photo belonged to actor Bradley Cooper, who actually pressed the shutter button. True or urban myth? Spink: True. Generally, we consider the person who presses the shutter button to be the author, because they ‘created’ the photograph. Copyright protection exists as soon as the work is created in a fixed form, and belongs to the author, which coincides with pressing the shutter button. In this situation, Ellen may have some rights, e.g. as a collaborator and joint author, or via an implied license.
Thorpe: What about images created by devices with no human nearby, like the Hubble Telescope or the Mars Rover? If a hunter finally gets a tack sharp image of a sasquatch with his game camera, will he or she not own it? Spink: Ownership derives from authorship, and authors must make a substantial creative contribution to the work. I suspect someone at NASA is ultimately responsible for pressing the “shutter” on the Hubble Telescope or Mars Rover, and contracted to give those rights to NASA. Likewise, the hunter has chosen the location, the direction to aim the camera, the lens, and contributed creatively to the ultimate photograph of sasquatch. Thorpe: Drones are increasingly being used to create intellectual property. Some wedding photographers are using them to get unusual, and very expensive, images for the couple. Is it possible that the photographer would not own those images? Spink: While these situations are very fact intensive, my reaction is that the photographers are still controlling the drone to determine what is seen by the camera, and thus sufficiently contribute to the creation of the images.
Thorpe: What about conceptual art, where a photographer intentionally sets out to create something but will not be present when it’s created?
Spink: This topic “lens” itself to some interesting questions. The photographer, let’s call her Iris, must contribute creatively to the ultimate work that is fixed in the image. If another person carries out Iris’ idea, the issues of whether the image is a “joint work” arise again, and we must look at each person’s contribution. I would recommend to Iris that she contract with any other involved persons to make it clear that their contributions are to be considered a “work for hire” or otherwise be assigned to her. Iris-t my case.