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Macaque Monkey Selfie: Copyright or Public Domain?

Updated on September 12, 2017
Beth Eaglescliffe profile image

Science graduate and business advisor, health educator and author, Beth writes articles on a wide variety of subjects.

The Infamous Macaque Monkey Photo With Its Toothy Grin

Self-portrait of a Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia.
Self-portrait of a Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia. | Source

Wikipedia Versus David Slater

Briton David Slater is in dispute with Wikipedia over a photo they have published on the Wikimedia website. Wikipedia claims the image is in the public domain. David Slater disagrees with them and says he owns the copyright. He is a professional wildlife photographer and his main income is from selling photographs. The matter of who owns the copyright is thus vitally important to him.

The photograph (shown above) is a close-up of a macaque monkey. The grinning smile in the portrait has become an iconic image. It has been shared millions of times via social media, but Mr. Slater has made no money from its popularity.

In 2011, David was on location in Indonesia filming macaques. The monkeys are an endangered species and he planned to use the photos to raise awareness of their plight. He spent several days with them in the forest, but the “big money shot” eluded him. In order to get that special picture, he set the camera with a distance release switch. He moved out of sight of the animals and they were able to approach the camera unafraid. The monkeys were fascinated by their reflection in the lens and put their faces really close to it. The camera trigger was pulled and some incredible images were captured.

Monkey Selfie Image Starts Copyright Row 2011

Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

— United States Copyright Office

Can a Non-Human Take a Photo?

The legal fight hinges on whether a selfie can only be taken by a human being or whether an animal can take one too. ‘Selfie’ is short for self-portrait. The person who takes the picture and the subject of the photo are one and the same and they hold the copyright. US copyright law refers only to the protection of artistic work created by people. Animals are not mentioned.

Wikipedia argues that even though the monkey cannot claim copyright, neither can David Slater as he did not take the shot. The camera shutter was triggered by a macaque monkey and so the monkey was the photographer. Their viewpoint is as follows. “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.”

Full Length Self Portrait Taken By Macaque Monkey

These selfies are works in the public domain until a US Court determines otherwise.
These selfies are works in the public domain until a US Court determines otherwise. | Source

The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.

— Stanford University Libraries website

PETA Gets Involved

The main fight about who owns the copyright has been wending its way through the US Courts for the last 6 years. In 2015 animal rights group PETA (People for the Ethical treatment of Animals) joined the fray on behalf of the macaque monkey.

They argued the selfie photos should not be classified as public domain as the copyright is owned by the monkey. David Slater has published a book Wildlife Personalities that uses these pictures. The book is a commercial venture and PETA are against this. They say profits from the sale of any of the macaque’s self-portraits should be used to benefit the animal. The Courts have disagreed and ruled against PETA.

PETA Sues Over Monkey Selfies

Monkey Photograph Law Suit Reaches Federal Appeals Court

PETA represented their case in July 2017 to the US Federal Appeals Court.

David Slater’s attorney argued that “the monkey named Naruto couldn't hold a copyright because he cannot benefit financially from his work. The British copyright for the photos obtained by his company should be honored worldwide.”

The Facts So Far Are as Follows

At every stage of this process, the US lower Courts have determined that David Slater does not own the intellectual copyright to the macaque’s selfie photos. Each Court has ruled in favor of Wikipedia’s contention that the photos are public domain works and therefore freely available for anyone to use.

PETA is still trying to act as a “friend” to the monkey and argues that any monies should be used to protect this critically endangered species.

The UK has granted copyright of the pictures to David Slater and his company in Britain. However, without US copyright protection the photos are still being freely copied and shared online.

Mr. Slater continues to say that without his camera and equipment the monkeys could not have taken the photos. He insists he owns the worldwide copyright as he set up the tripod and the monkeys only played with the camera for a few moments. He says he has lost income due to this dispute. Because of widespread copying of the image he has suffered consequential loss of royalties.

Federal Appeals Court Hears Copyright Case July 2017

Update September 2017

ABC News reported on 09/11/2017

"A lawsuit over who owns the copyright to selfie photographs snapped by a monkey has ended in a settlement before a federal court could answer the novel legal question.

Under the deal, the photographer whose camera was used to take the photo agreed to donate 25 per cent of any future revenue of the images to charities dedicated to protecting crested macaques in Indonesia, lawyers for animal-rights group People for the Ethical Treatment of Animals (PETA) said."

Journalist Matthew Hughes suggests on TheNextWeb.com (12th September 2017) the photographer was bullied by PETA into accepting this revenue sharing arrangement. David Slater is said to be having difficulty finding enough money to pay his attorney’s bill. In contrast PETA receives millions of dollars in revenue each year to fight its cause.

Lawyers representing both David Slater and PETA have asked the San Francisco-based 9th US Circuit Court of Appeals to dismiss the case. However, as I write this, there is no confirmation they have done so. So far no ruling on the case has been issued by the Court of Appeals.

Further Information

The crested black macaque is the most endangered of the seven macaque monkey species found on the island of Sulawesi (formerly Celebes) in Indonesia. For more information about this monkey, Macaca nigra, and its critically endangered status take a look at the wildlife charity Arkive’s website.

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