Using Images Without Permission is No Monkey Business

Gray Reed
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Who owns the rights to a selfie taken by a monkey?  While it sounds like a law school exam, it is based on a real story as reported here by the American Bar Association.

According to the article, a monkey picked up the photographer’s unattended camera and began taking pictures.  This is one of the images captured by the monkey.

https://jdsupra-html-images.s3-us-west-1.amazonaws.com/e803d62d-129e-4a6a-b1e3-2aa8c9be19bb-monkey_selfie.jpgThe nature photographer claims he owns the copyright. Meanwhile, the Wikimedia Commons website has been distributing the picture for free and has refused to take it down.

Usually, the rule is that whoever takes a photograph owns the copyright as discussed with the famous Ellen DeGeneres Oscars selfie.  Wikimedia is claiming animals can’t own copyrights unless a human adds a significant creative element to the picture. Hence, Wikimedia says there is no copyright with the picture.

Under U.S. Copyright law, to be entitled to the copyright, you have the be the “author” of the work which is normally the person who created the work and the basis for the general rule when it comes to photographs.

The U.S. Copyright Office has a rule that the work must be of “human authorship” and works created mechanically or by random selection, without any human contribution, are not eligible for a copyright.  The photographer’s claim that the picture was a result of his hard work may not succeed under U.S. law.  It’s not the amount effort that counts, it’s the inclusion of human creative originality.

The blawgosphere is offering many opinions on this.  For example, Steve Baird suggests that perhaps the monkey is the photographer’s assistant and therefore the credit for the picture goes to the photographer. Matthew David Bozik opines that perhaps it is a joint work.  We will have to see what tactic the photographer takes.

In the meantime, what can you do to avoid the same problem short of making the animal sign a work for hire agreement?  You can do post-production work on the photograph that provides its own original creative touch to it without releasing the original.  While it may not be a selfie if you remotely take the picture, you would still be considered the one who clicked the button.  According to the articles, the photographer went through a lot of effort to make this happen – will he get the credit?

You can read more about the case herehere,  here and here.

*photo credit : From the Wikimedia Commons website

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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