This Christmas, my mother-in-law gave my dog-obsessed daughter a gadget that (ostensibly) allowed her to view life through the eyes of our dog, Olive. It was a digital camera that attached to Olive’s collar, and it randomly snapped a picture every minute or so as Olive roamed around our yard and went about her daily, um, business (no, thankfully, it didn’t photograph what was going on at that end of the dog…). Well, we got a lot of pictures of grass and her food bowl, and a couple of catawampus views of our agapanthus and geraniums, which were cool in a canine fun-house sort of way. But I definitely wouldn’t have put any of them in a frame. I mean, I love my dog, but Ansel Adams she ain’t.
Well maybe I should reconsider. You see, a fantastic self-portrait taken by a monkey has been sweeping the internet, and causing quite a ruckus in certain copyright circles. (How is this macaque already better at self-portraits than 95% of people posting their pictures on Facebook?) Apparently, when award-winning nature photographer David Slater momentarily walked away from his tripod while filming black macaques in Indonesia, one of the monkeys took over, snapping hundreds of pictures. It isn’t quite Shakespeare, but the now-famous grinning self-portrait of the chimp is pretty remarkable.
Remarkable enough, it seems, that Slater is trying to steal credit for it. And while this has set off an interesting debate online as to whether, and under what law, Slater might have copyright rights in the macaque’s work, I’m more curious as to what rights the macaque himself ought to have.
The monkey business began when website Techdirt posted a story questioning the legal basisfor the copyright notices affixed to certain of the monkey’s photos, attributing them to U.K. based Caters News Agency. As geeky copyright aficionados are wont to do, Techdirt and other internet commentators pondered: how did the copyrights get transferred to Caters? Did the monkey assign them? It’s not like Slater held the copyrights on the images — he didn’t take the pictures and thus isn’t the “author” under the meaning contemplated by the Copyright Act, even though he owned the camera used to take the shots. Its not like he used any creativity to frame the pictures, or set the lighting, aperture and background; Slater admitted (at least at first) that the photos were taken by accident, although he later reversed course, claiming that he knew all along the monkeys would do this and that it was his “artistry and idea to leave them to play with the camera.” Of course, as Techdirt notes, copyright is not in the idea, but rather in the expression. The copyright in the photograph is limited to the creative choices in the expression, not the idea, and the expression here was all simian.
While this copyright debate raged on, Caters sent Techdirt a takedown notice requesting that the images be removed from its site. When Techdirt stood its ground, challenging the copyright and claiming fair use, Caters insisted that “regardless of the issue of who does and doesn’t own the copyright — it is 100% clear that the copyright owner is not yourself.” Sounds like Caters may be harboring some doubt as to whether it does, in fact, have protectable copyright interests in the photos, doesn’t it? Then Techdirt went all Charlton Heston on them and rode off into the Forbidden Zone and issued subpoena notices to Cornelius and Dr. Zira. (That last part may have been exaggerated. But who here doesn’t want to know what Dr. Zaius would have to say on the matter?)
The truth is, no one may own, or at least be able to enforce, the copyright. Human creativity may be a prerequisite for a copyright registration: the Compendium II of Copyright Office Practices published by the U.S. Copyright Office provides that, in order to be entitled to copyright registration, a work must be the product of human authorship.
Then again, there’s nothing in the Copyright Act itself expressly mandating that “authors” be human. Why shouldn’t that cheeky monkey get some legal props for taking an adorable self-portrait; I can’t even manage to take a photo of someone without chopping off either the top third of their head or snapping fifteen shots in a row with their eyes closed. I’ve heard that chimps possess an intelligence level equivalent to that of a human toddler. If a two-year-old human had wandered into that park in Indonesia and taken a self-portrait with Slater’s camera, you can bet your bonobo that the toddler’s parents would be asserting copyright on his behalf. Why not the monkey?
Animal research tends to suggest that animals can be creative, to the same extent as humans. The paintings of famed primate pair Koko and Michael, for example, were exhibited in a San Francisco gallery to great acclaim (regardless of copyright issues), and prints are regularly sold on the Internet to support the conservation mission of Koko’s caretakers, The Gorilla Foundation. One of Michael’s paintings displays a black-and-white shape that eerily resembles a profile photograph of Apple, a black and white dog the gorilla regularly played with; if his human caretakers are to be believed, Michael apparently indicated in sign language that the piece was titled “Apple Chase.” Who’s to say that when animals engage in seemingly artistic behaviors, they aren’t creatively expressing ideas — not merely responding mechanically to some external stimulus? And if so, is there really any legal or moral distinction to be made between human and animal authors? Doesn’t society have an interest in protecting and increasing access to such works?
Animals, of course, do not have the capacity to enforce their legal rights. But a guardian could be appointed for this purpose, as we do with underage humans, or those physically or mentally incapacitated. Harvard law Professor Laurence Tribe reportedly has spoken out in favor of animal legal standing. But to date, courts have been loathe to grant animals standing to sue to enforce their “rights.” In the early 1980’s, a malpractice lawsuit was filed against a vet, naming the poodle as plaintiff. The attorney moved for an order appointing the poodle’s owner to serve as guardian ad litem. The California Superior Court wasn’t amused. The poodle’s lawyer (founding director of the Animal Legal Defense Fund) has publicly expressed relief that she herself was not involuntarily committed.
I don’t think I’m quite ready to stand up in court to protect Olive’s rights in her floral landscapes. Truth be told, her collar camera randomly takes photos at regular intervals; hard to say there’s much creativity there, as charming and expressive as our family thinks Olive can be. But I did just learn that Seattle-based kitty Cooper the Cat also has a collar camera that automatically takes a picture every couple of minutes, and his unframed photos sell for hundreds of dollars a pop. He even has a “Cat Cam” book of photographs for sale (and, by the way, his own Facebook page).
Well I’ll be a monkey’s uncle.