The wonderful photo above has gone viral on the web, and is also causing serious debate among intellectual property lawyers. The weird tale is as follows:
Wildlife photographer David Slater was visiting a national park in North Sulawesi to photograph the wildlife. His subject was a group of crested black macaques, and when he left his camera unattended, the primates took advantage of the opportunity. Apparently attracted by the reflection and the noise the camera made when activated (the implications of the macaques doing this because they were interested in photography are too disturbing to contemplate, so I won’t), one macaque took hundreds of photos of itself. Most were blurry and out of focus, just like the pictures my dad took, but a few were superb selfies that would have Ellen DeGeneres eating her heart out.
Wikimedia took the clear images off of Slater’s website, adding them to its collection of royalty-free graphic, and sending them all over the web as a result. Slater now demands that the images be taken down or that he be paid for them. While Wikimedia argues that either the monkey owns the copyright for the photos or nobody does, the photographer claims that being the owner of the camera, and the artist who created the circumstances under which the macaque was inspired to release his inner Richard Avedon, he alone is the owner of the photographs.
As you might expect, copyright law is unclear on the issue of lower primate selfies, an art form that was not anticipated as the law evolved. I don’t care about that: today’s Ethics Alarms Ethics Quiz is about fairness:
Should Slater have full ownership of the macaque’s creations?
My view? Sure he should, looking at it from the standpoint of fairness only. It’s his camera. It is fair for him to own images made by it if he had anything to do with creating the circumstances that led to the photos, and no other human photographer has a competing claim. Yes, he was lucky. The beast could just as easily smashed the tool of his trade to smithereens. There is nothing wrong with rewarding good fortune.
Having said that, I should add that I’m not pleased with Slater’s conduct in the controversy, which includes recently concocting the unlikely story that he intentionally left an expensive camera for monkeys to fool around with, hoping to get some good photographs out of the plan. This was not how the story was originally told, and it has all the earmarks of something a lawyer advised him to say to bolster his intellectual property claim.
UPDATE (8/24/14): The Copyright office answered the quiz: no copyright for Slater!
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Sources: Techdirt 1; Peta Pixel, Conversation
Ethics Alarms 
Were it not for the circumstances that Slater caused the photo would not have happened. If a person had been hurt by circumstances Slater caused that person would be able to bring a lawsuit. Why does it seem that the law, or maybe it’s just opportunistic people using the law, is always out to punish people or take away their things, but never out to help them.
Wyo, if it was me, I’d give the copyright to the monkey. No legal grounds for it, admittedly, but he looks like he is having SO much fun with it.
If someone steals your camera, as they have no right to it, they have no right to photos taken by it, so therefore the copyright is yours as owner of the camera, but if you lend your camera to someone then the borrower has the copyright as they have legal possession of the camera at the time.
As Slater said he deliberately left the camera for the macaque to use then the macaque owns the copyright to the photos.
The macaque isn’t a fucking person.
Obscene but correct. Non-humans have no intellectual property rights.
Sorry. I’m fast becoming jaded.
So therefore who owns the macaque and therefore the photos?
My commentary below.
Nobody owns the macaques. Nor is there a transitive principle in intellectual property law. If an artist gives my dog paint and a canvas, and he draws a masterpiece, no law I’m aware of gives me the rights to his artistry if the one who inspired him to paint takes and publishes the painting. I haven’t read any theory that the park owns the photos. It’s either the photographer or nobody.
Well I don’t think Slater or the macaque signed the forms/checkboxes to make the photos creative commons materials, Wikimedia has no leg to stand on to claim it’s copyright free. Just because a photographer doesn’t understand copyright, doesn’t mean it isn’t protected. (Slater or simian)
Possibly the people of Indonesia (location of the North Sulawesi preserve) might hold the copyright… Do works of the Indonesian government automatically enter the public domain (as in the United States)? (Do macaques qualify as government employees???)
I’d agree about the assessment that just because an accidental moneymaker is discovered on your property doesn’t mean you don’t have the rights to it. If Lot 1 and Lot 2 are purchased by 2 people, and on Lot 1 is discovered the world’s largest diamond, it is completely fair that person 1 has rights to it.
In this situation, my only question is if the photographer made all arrangements necessary with the mangers/owners of the preserve for the kind of photography he did. If he violated any agreement with them, then any pictures taken in violation would be theirs, no?
Okay, this comment has nothing whatsoever to do with ethics nor copyright law. But I still have to say it.
That picture keeps making me giggle…over and over again. I just can’t help it. 🙂
–Dwayne
I agree, it’s a wonderful photo.
If a painter were to, say, dip snails in some kind of paint and allow them to crawl across a canvas to make a pattern, it would be perfectly reasonable to say that the painter owns the copyright on the painting. On the other hand, if you plant a tree and the tree grows by chance into a spitting image of Frank Sinatra, I don’t think you’d own the copyright of that image; in order to be the author of a work, you must intend to create that work.
I think Spater deserves this copyright, and the only reason there is doubt is because of the nature of digital photography. A snail-painting is an object, and the “copyright” is a right to make inexact copies of it, through photography, for example. A copy of a digital photograph is (or can be) indistinguishable from the original. The public domain claims seem to stem from the question of whether Slater intended to create this exact image, but that claim seems unreasonable. He intended to create a whole bunch of photos, and every good nature photographer must be open to “happy accidents .” A sculptor may hire an assistant to cast a mold of his statue; a photographer should not have to press the shutter to author a photo.
This is one of the strangest ethics debates I’ve ever seen!