Photographer David Slater Claims That Because He Thought Monkeys Might Take Pictures, Copyright Is His
from the is-this-some-new-copyright-theory? dept
It appears this monkey business isn’t over just yet. As you probably know already, we had a discussion recently about some monkey self-portraits, in which some monkeys in Indonesia happened upon a camera left by photographer David Slater. In the original article on the subject, Mr. Slater stated clearly that he believed the resulting photograph was due to an accident:
‘One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy, said Slater, 46.
‘At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection.
‘They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button.
‘The sound got his attention and he kept pressing it
‘At first it scared the rest of them away but they soon came back – it was amazing to watch.’
As we noted, it seems pretty clear that under copyright law in the US and the UK, the photograph is in the public domain. They were not created by a human. The creative inputs into the image were not made by a human. There is no copyright on those images. And yet, Slater apparently licensed them to Caters News Agency, who sent us a takedown request. We stand by our assertion that the images are in the public domain, and even if they’re not, our use is covered by fair use rules within copyright law.
The story has been getting wider and wider attention, and it has now been picked up by the Metro in the UK, who spoke with David Slater to get his take on things, and he stands by his belief that he holds the copyright, based on a rather unique interpretation of copyright law (and, by unique, we mean “wrong”):
‘Until I hear from the monkey?s lawyers, I will stick to the belief that I own the copyright,’ said Mr Slater yesterday.
He obtained the amazing photo when he left his camera around a group of primates on the Indonesian island of Sulawesi.
But he said, although he had left the equipment ‘unmanned’, the suggestion the incident was an accident was wrong.
He claimed he had engineered the shoot, adding: ‘I was the artist behind it.
‘It was my artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken.’
It’s a nice thought and all, but I can find nothing in copyright law that suggests it is determined this way. If I leave out a stack of crayons for my son and he colors the walls, do I get the copyright on it? No. He does. Separately, Slater himself admitted earlier that it was an “accident,” so he’s now changing his story. As for the final sentence that it was his “idea,” that’s totally meaningless. Copyright is not on the idea. This is why we have the idea/expression dichotomy in copyright law. And, yes, both US and UK copyright law have the idea/expression dichotomy (applied slightly differently, but as far as I can tell that difference is meaningless here). Copyright only applies to the expression and not the idea. It makes no difference at all that he had the idea, or that he left the camera out hoping for the accident. It makes no difference that he predicted what would happen.
Hell, I predicted that David Slater would say that the copyright belonged to him. Based on David Slater’s reasoning, because I predicted it, the copyright on his statement now belongs to me. But, of course, that’s silly. The copyright in a photograph is specifically limited to the creative choices in the expression, not the idea — and the monkeys took the pictures here, meaning the expression was their own.
Separately, the Metro article claims that unnamed “experts” agree with Mr. Slater:
Copyright lawyers confirmed that setting up the pictures gave Mr Slater a lawful claim to the copyright.
And experts added the ?author? of any copyrighted work had to be a ?natural? person ? not, it seems, a monkey.
It’s kind of strange that they don’t name or quote these “experts,” but I believe the Metro either misrepresented the copyright issue at hand, or is misrepresenting the reply of the lawyers they spoke to. First off, it’s true that a photographer could potentially claim copyright on an image shot by someone else if they really were involved in “setting up the pictures,” but that means actually setting up what the photo is about: the framing, the composition, the angle, etc. Slater did not do that here. He did not do enough to qualify for a copyright under US or UK law. The “experts” are also correct that the author, for the purpose of copyright, needs to be a natural person and not a monkey… but this does not mean, as the article falsely implies, that when the true author is a monkey, the copyright defaults to the nearest human.
I’m sure that Mr. Slater is a nice guy and a wonderful photographer. I went through some other images on his site, and he’s very talented, and deservedly holds the copyright on many other photos. But on these images, he’s just wrong. He doesn’t hold the copyright. I doubt the monkeys will send their lawyers after him, but he should be careful about claiming he holds the copyright.