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Monkey Selfie Ignites a Copyright Dispute

August 08, 2014

​Fenwick & West intellectual property litigation partner Andrew Bridges was interviewed by CBS MoneyWatch regarding whether a selfie photograph taken by an animal can be copyrighted and claimed by the photographer who provided the equipment.

A UK-based photographer of wildlife, David Slater, is battling with Wikimedia Commons over his claimed copyright on a photo that an Indonesian macaque took of itself using Slater’s camera.

As an expert in copyright law, Bridges told CBS MoneyWatch that Slater probably doesn’t own the copyright because he didn't have artistic control over the photo that was produced with his camera.

Under the applicable laws in the UK, Indonesia and the United States, "copyright requires original creative expression of a work," Bridges said.

"Let's say that the monkey had eaten a bunch of bananas and had piled the banana peels on the jungle floor," Bridges continued. "If a person takes the peels and puts them into a museum, is he the sculptor? I don't think so."

A more common but analogous scenario occurs at wedding receptions where disposable cameras are made available to the guests. "Let's say the guest takes a picture that is fabulously funny and goes viral," Bridges said. "Does the wedding couple or the guest own the copyright for the picture?" Copyright goes to the guest, Bridges answered.

According to CBS MoneyWatch, the self-portrait taken by the black crested macaque in 2011 has become one of the most popular images on the Wikimedia Commons website, where it can be downloaded for free. Slater asked the website to remove the photo, but Wikimedia refused, arguing that Slater couldn’t hold a copyright on the image since he didn’t take it. 

Slater is credited on Wikimedia with having "rotated and cropped" the image, but Bridges said those actions might not be sufficient to legally establish a copyright interest.

The full article is available through the CBS News website.