We will likely never know whether a monkey, put in a room with typewriter and given sufficient time, will actually type out Hamlet, but we do know now that a monkey given a camera can take a pretty good selfie. Wildlife photographer David Slater found this out when, during a shoot in Indonesia, a crested black macaque stole his camera and, apparently among other random exposures, captured a winning likeness of himself. The photo is now the subject of a copyright dispute between Slater, who claims ownership of the copyright, and Wikimedia Commons, which believes it belongs in the public domain. Out of respect for Slater’s claim, which I do not find frivolous, I will not reproduce the selfie, but you have got to check it out here. It really should put to rest any doubts about the theory of evolution.

Press accounts suggest that Slater is arguing that he owns the copyright because it was his camera, and Wikimedia is arguing that because the photo was taken by a non-human, there can be no “author.”  I suspect the actual arguments are more nuanced, because both of these positions seem like misfires to me, at least under U.S. copyright law.

Other than in cases of works-made-for-hire, ownership of copyright initially vests in the “author” of a work. In a work-made-for-hire situation, basically an employer-employee relationship, ownership of the tools may be one factor to consider, but this is so far removed from any plausible employment relationship I don’t think ownership of the camera has any relevance at all. Slater should be arguing he is the author, or at least the coauthor, of the photo.

Assume for a moment he had set his camera on automatic and given it to the monkey to see what kinds of pictures would result (much like sending an automatic camera up on a drone or mounting it on a car dash)—I don’t think there would be any question of Slater’s authorship. He would have contributed more than the minimal quantum of creativity necessary for “authorship.” The fact that the monkey “stole” the camera may cut against this argument, but I don’t think it defeats it. Slater introduced a camera into this situation to record wildlife, and the fact that there was some measure of fortuity or randomness in the result does seem to me to defeat a claim of authorship.

By the same token, I don’t think copyright law excludes the possibility of non-human authorship, as Wikimedia reportedly argues. Authorship is simply minimal creativity plus originality in the sense of not copying from another. We would not deny that an infant human who inadvertently snapped a selfie was the author, why is the monkey different? I would suggest it is not a matter of authorship, but rather the fact that there is no point in granting a copyright to a creature who cannot exploit or license any of the exclusive rights that copyright entails, such as the right to publicly display or the right to make derivative works. Non-human copyright ownership would not, I think, advance progress in science, the goal of U.S. copyright law.

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