It has always been suggested that if you put 100 chimpanzees in room with 100 typewriters, they will eventually write all the sonnets of Shakespeare.  According to photographer David Slater though, if you put a pack of macaques in the jungle with a camera, you will own the copyright to any pictures that they take.

Photographer David Slater traveled in Indonesia and took an excursion to photograph the elusive and endangered black macaques.  While in the jungle, some macaques ventured upon Mr. Slater’s camera and managed to take some pictures of themselves.  These photos (as seen in the links) have made their way around the Internet, bringing joy and striking up controversy.  If you look at the photos, you will discover that two of the three images circulating around the Internet have copyright notices.  The third does not.  The website Techdirt made this observation and then posed the question, who actually owns the copyright to the images?

The copyright notice indicates that Caters News Agency Ltd. owns the images, which means a copyright transfer occurred.  Common sense would lead one to believe that Mr. Slater transferred the copyright to Caters, but Techdirt challenged that Mr. Slater never owned the copyright in the first place.  This prompted Caters to ask that Techdirt remove the photos from their website (which raises a fair use debate that can best be saved for another blog post). Eventually Mr. Slater got back into the mix, saying that he purposefully left his camera behind so that the macaques would take the photos.  He said, “[i]t was my artistry and idea to leave them to play with the camera and it was all in my eyesight.”  This does seem to slightly contradict statements previously made by Mr. Slater, though, where he spoke about how the primates “accidentally knocked the camera and set it off.”  The article from the Daily Mail also stated that Slater left the camera unattended for a while, contradicting the statement that Mr. Slater purposefully arranged the incident by keeping everything “in his eyesight.” Now contradictions can happen and words can be misinterpreted, so I do not want to allege that Mr. Slater is lying.  I take him at his word because all I want do to is look at copyright law.

Copyright vests initially in the author or authors of the work.  So who was the author? The macaques took the picture, but Mr. Slater orchestrated the chance for a photo to be taken.  If the macaques were human, they would clearly own the copyright to the photos they took.  Since they are not “natural persons,” though, they get no claim to the copyrights.

The photos do not appear to be a work made-for-hire either, since Slater did not hire the macaques to take the photos, nor did macaques prepare the work for Slater.  The macaques are not “natural persons,” so hiring and preparation seem out of the question anyways.  We would run into the same problem with an ownership analysis of collaborative works.

The general question of ownership fails to provide a clear answer, but maybe the specifics of copyrights in photographs would yield some insight.  The Sarony case said that the individual who takes a photograph could embody an idea in a photograph by making decisions about expression, attire, background, lighting, and other elements captured in the photograph.  It the present case, the macaques chose the background, lighting and the angles of each individual photograph.  Mr. Slater chose the macaques, though.  He also chose the part of the jungle to leave his camera, the time of day to do so, and the time to take the camera away from the creatures.  Is that too far removed from the act to claim ownership?  Or did Slater purposefully incorporate more elements of nature into his photographs?  Just as a photographer chooses what elements of nature to incorporate into his photo, Mr. Slater did the same, except he did not choose exactly when the photo was taken.  That might not be enough, though.  Mr. Slater did not make the specific decisions about the original elements of each photo, as deemed necessary by the Sarony case, and that may prove to hurt him.

One thing I would like to at least mention is that nature and the elements can affect works that are eventually copyrighted.  From hearing a muffled thunderclap on a music track recorded in a cheap garage, to having dirt blow on, around, and in the toilet blow you just made into “found art,” nature can have a hand in the creation of copyrighted works.  Maybe that is exactly what happened here.  Maybe nature just added its hand into the creation of a copyrighted work.

This issue could of course be battled forever, but if Mr. Slater did orchestrate the photo session as he claims, there might be a modicum of originality in the elements he could control to allow him to obtain a copyright in the photographs.  That being said, keep up the good fight Techdirt because this is the only way we can truly keep copyright law progressing.

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