Cracking copyright law: How a simian selfie stunt could make a monkey out of Wikipedia

Creativity can't start and end at the push of a button

Whether you're on Team Slater or Team Jimbo, it's going to court

So what’s all this fuss about the US Copyright Office, then? This week it refused to register the copyright of monkey selfies.

One of the American quango’s statutory duties is to act as a deposit library, and to fulfill this, it needs to identify an owner. This has caused some confusion. But two things must be kept in mind: under Berne, copyright is automatic, and doesn't require registration. And secondly, disputes are settled in court.

Like the UK Intellectual Property Office, the US Copyright Office cannot settle private disputes. Hence why Slater must make an infringement claim against Wikipedia for using the pic on its website.

In a new draft of its copyright law compendium, published this week and set to be made official this year, the Copyright Office said it wouldn’t assign ownership in its catalog to spirits and animals, and it wouldn’t register machine-generated works. So the monkey, as in the UK, is out of luck.

But in terms of Slater’s claims, that’s neither here nor there. The US law has similar criteria to the UK. Some intellectual input is required in terms of composition – but not so much. Only a “modicum of creativity” is required for the human to gain copyright protection. Slater made choices such as choosing the location, the equipment, where it was placed – in front of the monkeys – and choosing what to keep and discard.

Even before the USCO update this week, it’s doubtful how any ownership arguments on behalf of the monkey could have been advanced. Did it see and recognize the camera? Did it know what a camera was? Did it exert its own intentionality – did it think: “That’s handy. I fancy taking a picture right now.” Did it know how to operate it? No to all.

Someone's not happy with Wikipedia's selfie decision

Declaring the image public domain could backfire badly on Wikipedia; it looks mean-spirited by suggesting creativity starts when a button is pressed and ends when it's let go – something so mechanical, a monkey can do it. Who needs artists, anyway? This is a deeply misanthropic argument, but one which some Wikipedians seem to be reveling in making.

As veteran Wikipedia contributor Andreas Kolbe reported:

“The Wikimedia Foundation has turned [the monkey selfie] into a symbol of its determination to retain content on Wikimedia servers ... it had also been used as a sort of conference mascot, with prints of the image displayed in numerous places around [London's] Barbican conference space.

“Even at the registration desk there was a copy of it, inviting attendees to take a selfie of themselves next to the image. As followers of the Wikimania Twitter stream could observe, Jimmy Wales led by example – and was rightly called out by some users on Twitter and, indeed, Wikipedia, for what appeared like tactless gloating."

The power relationship seems clear: using the image cost Wikipedians nothing, but an individual may have to dip into his savings to protect his livelihood.

Perhaps the threat of withholding donations may make Wikipedians reconsider their actions.

Would you fight a 30-million-pound gorilla?

Berne, which enshrined copyright as a right for the individual, is as relevant today as it was then. It was devised to protect creators from unscrupulous publishers who wanted to use and none want to pay.

The simian photo prank strongly gives the impression that Wikipedia has chosen which side it’s on: it’s against the little guy, it’s against the creator, and it’s got a $50m war chest to bankroll any legal battles. It has the riches an individual can’t muster.

Slater says he made a mere £2,000 in licensing the image – which, we're told, only just covered his travel expenses to Indonesia to obtain the photo. By putting the image on one of the most popular websites in the world, Wikipedia has endangered his chance of making any more cash from a world-famous photo.

It's a pity the UK's mooted small claims court for intellectual property has not advanced. This would allow individuals like Slater, without a wealthy foundation backing them, to get speedy justice and damages at a low cost.

Amateur Photographer reports that German company Picanova is offering a canvas print of the famous photo for free – it makes a little on postage – with permission from Slater, and it will donate a quid per copy to a conservation charity. Just something to consider if you're still thinking about donating to Wikipedia. ®