by Thomas Chisena, Penn Law ’16 and Jeffrey Bashara, Penn Law ’17.
Admit it. You – like most of us – have probably turned your smartphone or camera around and taken a “selfie.” In fact, a recent research study found that 55% of millennials (the generation spanning 18-33 year olds) have not only taken a selfie, but have also posted it online. Overall, 26% of Americans have posted at least one selfie online through social media. Selfies have become so popular that Merriam Webster added the term to its dictionary, and technology developers like Apple are seeking patents for the “selfie system[s] of the future.”
But selfies do more than just boost our vanity; they also pose novel intellectual property questions concerning both ownership and use. One such dispute arose when our animal cousins jumped on the selfie bandwagon. In Indonesia in 2011, two black macaque monkeys grabbed photographer David Slater’s camera and took several selfies of their own:
Slater then – in true selfie practice – posted them online. The monkey selfies went viral with features in popular media, including The Guardian, The Telegraph, and The Huffington Post.
Then, like all things of even trivial fame, the monkey selfies found their way onto Wikipedia. Wikipedia displayed the macaque selfies on Wikimedia – Wikipedia’s holding pen for images in the public domain. Slater claims considerable, real damage from the free and unlicensed use of the monkey pictures. Slater insists he owns the rights to the photos because he went through real expense to secure them.
But can a person acquire exclusive rights over animal generated work?
In the United States, 17 U.S.C. § 102 requires three criteria be satisfied to grant copyright protection. First, the work must be “fixed in a tangible means of expression.” Here, this element is not in dispute because photographs have long been recognized as a tangible means of expression.
Second, the work must be original. To be original, the work must be independently created by the author (as opposed to copied from other works), and it must possess at least some minimal degree of creativity. The amount of creativity required is generally a low bar – for example, the 11th Circuit held the term “You Are Special Today” engraved on a plate protectable. McCulloch v. Albert E. Price, Inc., 823 F.2d 316 (9th Cir. 1987). However, photography often poses special considerations. The photographer must show that she did more than just lift the camera and shoot; she must show that she imparted some creative element to the photograph.
As anyone who has seen the masterpieces created by painting elephants will argue, animals can have creative inclinations. However, no one can claim that every time an animal creates something it is enough to pass the required threshold. For example, every time a dog barks in succession he is not writing a copyrightable song. Whether Slater’s monkeys had some creative purpose in taking their selfie, or just lifted the camera and mechanically pressed the button is debatable (as much as this author wants to believe they actually did know what they were doing).
Lastly, and perhaps most problematically here, a work must be fixed by an author. This element of copyright protection is particularly important because ownership of the selfie vests “initially in the author.” 17 U.S.C. § 201. The author of a work is the person “who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989).
Although this doctrine invites the “she who takes the selfie owns the selfie” mentality, precedent shows this mantra is not always true in photography. For example, the Southern District of New York held that the director who planned the camera angles and sequence for a documentary film was the copyright author, not the diver that actually held the camera at the wreckage site. Lindsay v. Wrecked & Abandoned Vessel R.M.S. TITANIC, No. 97 CIV. 9248 (HB), 1999 WL 816163, at *5–6 (S.D.N.Y. 1999). If an artist can show that it was her idea captured, then she is the author, even if someone else physically clicked the button. Thus, if Slater could show that he came up with the idea for the monkey selfie, then even though the monkeys actually pushed the shutter button, Slater would remain the author. Unfortunately, Slater has given no evidence of this genius plan; instead the monkeys themselves were seemingly inspired to take their own selfies. Therefore, here, the monkeys are the authors and any ownership of the selfies would vest initially in them.
Pre-empting a full-fledged legal donnybrook over the monkey selfie, the U.S. Copyright Office released a public draft of the third edition of its Compendium of U.S. Copyright Office Practices this past August. The issue was seemingly put to rest as it appeared to directly address the conundrum, asserting that under the new “Human Authorship Requirement,” the Copyright Office “will not register works created by nature, animals, or plants.” Compendium of U.S. Copyright Practices, Third Edition, Public Draft, at 8–9 (August 19, 2014). They explicitly cite the example of a “photograph taken by a monkey,” leaving no one in confusion about the rule’s impetus. Additionally, they disavow other works of animal art such as the renowned elephant compositions and any claims based on naturally occurring formations like “driftwood that has been shaped by the ocean.” Ultimately, this requirement necessitates creative input or intervention that differentiates from a process occurring randomly or automatically.
While this appears to have minimal repercussions going forward, aside from a fringe animal rights issue (PETA has not yet issued a statement), the concept enshrined does pose some interesting questions as technology continues to redefine the way we create. Apple and other industry giants contemplate new ways that a machine can produce, leaving one to wonder about the ramifications of a masterpiece autonomously created through technology, but with an individual user’s device as the canvas. Who would own such a piece? With 3-D printing on the rise, the legal answer to this question may be quite complex. However, until a future controversy sheds more light, we can take solace in knowing that animal-created art, including hilarious monkey selfies, belongs to us all.