Copyright for All Primates?

Macaque self-portrait, Indonesia, 2011, as captioned by the London Daily Mail.

In one of the stranger passages of the ongoing debate over intellectual property in the digital era, Caters News Agency Ltd. of Birmingham, UK, has claimed that the rights it purchased to several self-portraits and other images taken by a group of black macaques somehow fall within the protection of the copyright law. (See Mike Masnick’s July 7, 2011 story at TechDirt, “Monkey Business: Can A Monkey License Its Copyrights To A News Agency?”)

The monkeys in question snagged photographer David Slater’s “unattended” camera while the latter was shooting in Lore Lindu National Park, a forested protected area on the Indonesian island of Central Sulawesi. Presumably, members of this tribe (they’re an endangered species) made the pictures by accident. Slater subsequently licensed the results of this chance “shoot” to Caters. The image on the right, first published in London’s Daily Mail on July 5, quickly went viral, prompting Caters to send vaguely worded copyright-violation threats to a number of sites that reproduced the image, including TechDirt.

As readers of this blog know, I support strong protection for intellectual property rights and believe in the basic premises asserted by the copyright law. Which includes the premise, articulated in the U.S. Copyright Office’s published rules as follows:

503.03 Works not capable of supporting a copyright claim.

Claims to copyright in the following works cannot be registered in the Copyright Office:

503.03(a) Works-not originated by a human author.

In order to be entitled to copyright registration, a work must be the product of human authorship. . . . [A] work owing its form to the forces of nature and lacking human authorship is not registrable.

David Slater with macaque, primate photographer unidentified, Indonesia, 2011, as captioned by the London Daily Mail.

Both Indonesian and British copyright law hew closely to the same assumption, that authorship involves human agency. So it seems unlikely that Caters would prevail in a lawsuit in the UK, much less elsewhere.

Masnick muddied the waters with a false assertion at the very end of his otherwise accurate piece: “Slater almost certainly does not hold the copyrights on those images, and has no legal right to then sell, license or assign them to Caters.” Masnick clearly didn’t understand the basics of copyright law. What Slater did own, without question, were the original digital files of these macaque-generated images, and he had every legal right to sell, license or assign them to Caters, for their exclusive use. To his credit, Masnick apparently did his homework and clarified this in a follow-up piece, “Can We Subpoena The Monkey? Why The Monkey Self-Portraits Are Likely In The Public Domain” (TechDirt, July 13).

For a comparable example, consider a situation in which a coyote’s howl sets off your sound-activated audio recorder, or you deliberately record it. You own that recording; no one else has any claim on that audio file. If you can get a million bucks for it from the Discovery Channel, that’s perfectly legal. But the howl itself is in the public domain, not copyrightable or susceptible to infringement via use by others. (Unless, perhaps, the Discovery Channel were to trademark that particular howl.)

The problem, then, lay with Caters, not Slater. These images became public-domain material the moment the macaque generated them. (The Daily Mail story, and the captions the editors placed on the images, as reproduced above, explicitly assert that the primates initiated these exposures.) Caters licensed the rights to exclusive use of them from Slater, but then faced a conundrum: How could they exercise those rights? Only by maintaining strict control over the images’ availability. (For example, if they’d licensed reproduction rights to a T-shirt manufacturer.) As soon as the agency released digital files of the images for distribution via an online publication, the Daily Mail, their public-domain status became activated, so to speak, and public-domain usage thereof was enabled.

Thus the copyright notice that appears on the bottom left of the macaque portrait of Slater, reproduced above, has no legal status whatsoever. At best, it’s inadvertently misleading. At worst, it’s intentionally so, and false claim of copyright carries a penalty in all three countries. (In the U.S. it’s a criminal offense.) If that’s not known to David Burner, Co-Owner and Photo Editor at Caters, it should certainly be known to the company’s lawyers. Ironically, if Slater and Caters had simply kept their mouths shut about the genesis of these images, no one would have challenged or even questioned their status as copyrighted works — even if a few people posted them illegally at their own sites. We can feel reasonably confident that the picture-makers in this situation would have kept the secret.

Self-portrait, Koko, 1978

You know that somewhere the macaques are checking this out online and laughing. Do we need to start considering the extension of copyright protection to works by species besides our own? Does this signal a trend toward animal self-portraiture? I’m recalling the famous ground squirrel at Banff National Park. Other animals, including gorillas, have generated photographs — perhaps most memorably Koko, whose self-portrait graced a National Geographic cover in 1978 that, in 2005, was named one of the top 40 magazine covers of the last 40 years (1965-2005). Some elephants paint. (Some cats do too, as my friend and colleague Barbara Jaffe once informed me. My thanks to Jaffe for bringing this macaque story to my attention.)

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Note: If you have that nagging feeling that you’ve heard about macaque monkeys in the recent past, but can’t remember the circumstance, it’s most likely a dim recollection of the controversy that erupted roughly 5 years ago, in August 2006, when, at a campaign rally in southwest Virginia, Virginia Sen. George Allen (R)  repeatedly pointed to a young volunteer for Democrat James Webb and called him “Macaca.” During the speech in Breaks, near the Kentucky border, Allen singled out S. R. Sidarth, a 20-year-old volunteer of Indian descent — a Virginia native and son of Indian immigrants — for this designation. Here’s the YouTube video of that moment.

As the Washington Post pointed out in its August 15, 2006 report on the event, “Depending on how it is spelled, the word macaca could mean either a monkey that inhabits the Eastern Hemisphere or a town in South Africa. In some European cultures, macaca is also considered a racial slur against African immigrants, according to several Web sites that track ethnic slurs.” Allen subsequently apologized, saying he had no idea what the word meant. It was a tight race nonetheless: Allen lost the election to Webb by fewer than 10,000 votes.