Child Monkeying and Monkey Monkeying Not the Same Under Copyright Law

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August 8, 2014
Constance Lindman
SmithAmundsen Intellectual Property Alert

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U.S. and international copyright law spans a lot of ground. Copyright automatically arises in any “work of authorship” that is “fixed in a tangible medium of expression.” Books, videos, websites, music recordings, packaging, and even computer code are all subject to copyright. And, contrary to popular misconception, copyright arises automatically – no marking with a © or formal registration is required for ownership. (However, registration is required to sue for copyright infringement in the US.)

So, when your five-year old draws an adorable stick-figure-robot-dog-car, your little tike owns copyright in the drawing in the same manner as Jeff Koons or Thomas Kinkade owns copyright in their works. Only the price tags are poles apart. Likewise, when your teenager grabs your phone and snaps a sneak selfie that you only find days later, your teenager owns the copyright in that photo. Your teenager is the “author” of the photo under copyright law.

But what if the selfie wasn’t taken by a teenager, or even a human? What if an endangered crested black macaque grabbed your camera and started monkeying with it? That’s exactly what happened to David Slater in an Indonesian forest, and now Wikimedia Commons is distributing the photo without charge. Mr. Slater claims he owns the camera and the copyright. Wikimedia says the photo wasn’t taken by Mr. Slater. Therefore he is not the author and can’t own the copyright.

The Wikimedia Commons site identifies the “author” of the photo as “self-portrait by the depicted Macaca nigra female.” Under “permission” it states: “this 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.”

“He who takes the selfie owns the selfie,” indeed.