The monkey selfie strikes back

I have just listened to the latest episode of the excellent podcast “This American Life”, which dealt with the story of a monkey that took a selfie in the jungles of Indonesia, and David Slater, the photographer who made the portrait famous around the world.

The podcast recounts the story of how Slater travelled to Indonesia in 2011, and how he followed a troop of monkeys trying to get a few unique pictures. This part of the story is quite important from a copyright perspective, and it is interesting to hear more details from Slater’s own retelling of the events. Slater claims that he was specifically looking for a very close shot of a monkey’s face using a wide-angle lens, but the monkeys were obviously shy and not allowing him to get too close. While he managed to take a few pictures, none were the shot he was looking for. He claims that he placed the camera on a tripod as the monkeys were curious about the equipment, but the first batch of pictures were not good enough. He claims that he then changed the camera settings again, and one monkey in particular was drawn by the reflection on the lens. The monkey then went on to take a few pictures.

Slater claims that one in particular was astounding, a once-in-a-lifetime transcendental shot, where the monkey’s expression is one of pure joy and self-awareness. He imagined it on the front of National Geographic, so he sent that and a few other pictures to his agent, who then circulated it to a few news sources, and eventually it was first picked up and published by the Daily Mail as a feature story.

The rest is history.

The podcast goes through two interesting events from a legal perspective, the publication of the photograph in Wikipedia as a work in the public domain (because monkeys cannot own copyright), and the lawsuit brought by PETA. I have dealt with those two events in detail in blog posts and one article, but it is worth mentioning that the case was eventually settled out of court without making a decision about the copyright of the photograph itself. While the terms of the settlement are not known, both parties have revealed that Slater agreed to donate a percentage of his royalties to the monkey refuge where Naruto the monkey lives.

I am not so interested about the PETA case any more, but the podcast makes a very interesting comment, almost in a throwaway fashion. The reporter mentions that Slater is thinking of suing Wikipedia for copyright infringement.

Here we go again.

My guess is that Slater is planning to sue Wikipedia in the UK. Many commentators on the PETA case rightly dealt with US copyright law, as the case took place in California, and the agreement across the pond seems to be overwhelmingly against the picture having copyright. The jurisdiction aspect has always fascinated me, it seems like PETA clearly made a decision to sue in a US court when it could have easily sued in the UK. But if Slater sues in the UK, then my contention is that he has a very strong case in claiming that he owns the picture and that copyright subsists on the image. I have made some of these arguments before, but I will rely specifically on two photograph cases to make my argument.

The first case is that of Painer v Standard Verlags GmbH (C‑145/10), which involves Austrian photographer Eva-Maria Painer against several German-language newspapers. Ms Painer is a professional photographer, and she took a portrait of teenager Natascha Kampusch (pictured), who later became famous for being kidnapped and held for 8 years in a basement, and she later escaped her captor. At the time of her kidnapping, the only available picture of Ms Kampusch was the photograph taken by Ms Painer. Several newspapers used a computer version of the portrait to illustrate their stories of Ms Kampusch’s escape, and Ms Painer sued for copyright infringement in 2007 for such unauthorised use. The defendant alleged, amongst other things, that the portrait did not have copyright as it was not original enough because it was just a realistic picture, with little room for originality. The question was referred to the CJEU, which used the prevailing law and case law declaring that photographs are original if they are the author’s own intellectual creation reflecting his or her personality. But the Court of Justice went further, and elucidated what is an original photograph worthy of protection:

“90. As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production.
91. In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software.
92. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’.
93. Consequently, as regards a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent.”

This is extremely relevant for the current case. While Painer deals with portrait pictures, the court is very clear in listing the various actions that warrant originality, including choosing angle, lenses, and even developing the photograph. It is also important to note that nowhere in this definition, and in fact nowhere in any European case law or legislation (as far as I know), does the law require that the button is pressed by the photographer, the acts preceding and following the taking of the photograph seem to be more important in establishing whether the photograph is the author’s own intellectual creation. A similar strong indication of Slater being able to claim ownership of the picture comes from the English case Temple Island Collections Ltd v New English Teas [2012] EWPCC 1. The case involves an iconic black and white picture of the Houses of Parliament with a red bus crossing Westminster Bridge, the photograph is owned by a company that produces and sells London souvenirs; the picture became famous and it has been licensed to other companies. The defendants are a tea company that wanted to use the picture in its tins, and when the negotiations to get a licence for the use of the image broke down, they went ahead and produced a different version of the Temple Island picture with a different angle and setting, but keeping the mono-colour background and the red bus.

While the case rested mostly on whether a substantial part of the Temple Island image had been copied, the defendants argued at some point that the copied picture did not have copyright as it was not an original work. Here Briss QC relies heavily in Painer and other CJEU cases, and makes the following comment about the subsistence of copyright in the image:

“A photograph of an object found in nature or for that matter a building, which although not natural is something found by the creator and not created by him, can have the character of an artistic work in terms of copyright law if the task of taking the photograph leaves ample room for an individual arrangement. What is decisive are the arrangements (motif, visual angle, illumination, etc.) selected by the photographer himself or herself.”

So far, so similar to Painer; as long as the author has made decisions about the arrangement of the photograph, it should have copyright. But most importantly is the discussion about how photography represents usually a problem to copyright law, as “the mere taking of a photograph is a mechanical process involving no skill at all and the labour of merely pressing a button.” Something else is needed to convey originality than the mere act of pressing a button. Briss QC lists these following elements as acts that can convey originality in a photograph, so there is originality:

“i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on;
ii) Residing in the creation of the scene to be photographed;
iii) Deriving from being in the right place at the right time.”

Notice that all of these three elements are to be considered above the mere physical act of pressing a button, and in particular, you may note the third situation that can convey originality, that of being in the right place at the right time. If we believe Slater’s own telling of the story (and at the moment we do not have any other witnesses, other than the monkeys), he set the tripod, selected an angle, selected the lens aperture, checked the lighting, and was in the right place at the right time. To my mind, Slater did more than enough to be awarded copyright protection, not even considering his actions after the picture was taken, including the development of the photograph.

Concluding, there is a extremely strong argument to be made regarding originality of the monkey selfie in the UK based on these and other cases. if Slater was to sue Wikipedia in the UK, I can see a good chance that he would be given copyright over the picture.

Then again, everyone knows that monkey copyright is a bit passée. It’s all about feline copyright nowadays.

By the way, I am perfectly aware of the possible irony that I am arguing that the photograph is protected by copyright, and I’m reproducing it here. I think that I’m protected by fair dealing…