Sometimes interesting legal issues come from very unlikely sources. In this case, in 2011, a crested black macaque grabbed photographer David Slater‘s camera and snapped an awesome selfie. Although Mr. Slater apparently admitted that the animal was simply playing around with his camera and snapped the picture, Mr. Slater says he owns the copyright on the picture. Wikipedia posted the image on a page and has refused to remove the image claiming that no one owns the copyright. This is not a new story, but it has recently found new life as a result of the Wikipedia decision.
Mr. Slater now faces a legal dispute about whether anyone can own the copyright to a picture that was snapped by an animal. Wikipedia takes the position that because Mr. Slater did not take the picture and that the picture was created as the result of an accident, no one can own the copyright. On the other hand, Mr. Slater claims that although he did not push the button on the camera, he did orchestrate the picture.
This will raise a number of interesting copyright issues that the courts will eventually need to sort out. Because the creative process is so different for each artist, it is often difficult to define. If an artist employs a mechanical device to help create artwork, that artwork is generally considered the property of the artist. For example, a camera is a mechanical device that assists an artist in capturing his subject, but no one would claim that the camera, rather than the artist, owns the copyright on the resulting photograph, even though it was certainly the mechanical process of the camera that technically created the image.
The issue gets trickier when the artist employs an additional instruments to create the artwork. In this case, there is a good argument that Mr. Slater was simply employing an additional instrument in the creation of his artwork, namely the macaque. In spite of erroneous news reports, no one, including Wikipedia, is claiming that an animal can assert a copyright claim. Assuming that the animal can’t assert a copyright claim, then the copyright either belongs to Mr. Slater, or no one can assert a copyright because this was simply some sort of natural process. The second alternative seems very weak because there was a deliberate interaction between Mr. Slater and the animals in which Mr. Slater coxed them into interaction with the camera. Mr. Slater clearly placed the camera in the hands of the animal with the intent of capturing images. This interaction might be considered a blend of photography and a kind of performance art.
Simply because Mr. Slater pushed the limits of his tools and used them in a way that is different from the way others have used those tools, he should not be denied the ability to assert a copyright claim over his work. Had Mr. Slater used a remote device to trigger the camera’s shutter, rather than allowing the animal to trigger the shutter, there probably would have been no controversy over this issue. But the use of such a device would have essentially yielded the same results. In both cases, Mr. Slater would be trying to capture interesting images. In both cases, Mr. Slater would have needed to take lots of pictures to get the one he wanted. And in both cases, there is the possibility of failure.
Unfortunately, I don’t know that this case will ever make its way to the inside of a courtroom. Mr. Slater may decide that the cost of litigation is more than he is willing to risk, and that the publicity surrounding this story is worth more than any recovery he might get from a lawsuit. This is unfortunate for those of us interested in the issues, but may be the correct decision for Mr. Slater.
It does appear that Mr. Slater made one mistake that allowed this to become an issue in the first place. Apparently, when the image was first released, Mr. Slater made some statements that indicated that the image was created accidentally. I can only speculate as to why Mr. Slater might have made these statements, but it illustrates a point I have been trying to communicate to all business owners for a long time: it is important to always work with an experienced business lawyer who will help you identify potential pitfalls of your business activities. If your business is not working with a business lawyer, you are going to have problems identifying potential legal issues. In this case, had Mr. Slater provided a different (and perhaps more compete and accurate) description of his work and the process of capturing the image, he may have avoided this entire controversy.
Please feel free to contact the office directly if you have any questions about this or any related business law issues.