What about a caveman?
If Wikimedia is right, the caveman would own a copyright in his selfie (or perhaps Geico, under the work for hire doctrine) because he is a human being, capable of being an author under U.S. copyright law, but not the monkey — his or her selfie immediately becomes part of the public domain.
Well, I’ll be a monkey’s uncle, I never would have guessed an Indonesian macaque capable of such a beautifully perfect selfie! What, no direction?
Judging from the thick jungle of international news reports about the origin of the photo to the left, however, it sounds like it took the simian several hundred tries to capture the selfie everyone loves.
We might even call it the “money shot,” but that might provoke the owner of the camera equipment, David Slater, who sadly, it appears, only has made enough from this photo to buy a few loaves of monkey bread.
But seriously, I must ask, is Slater’s contribution — as a professional photographer — to the creation of this photo really only that he owns the equipment used to capture it? I think not. There’s much more, it appears.
I tend to agree with Matthew David Brozik — over at Likelihood of Confusion yesterday — that “judging from the quality of the photo in question, Slater (and presumably not the macaque) did a lot of work beforehand, because it is a terrific picture.”
Brozik goes on to make a creative joint authorship argument in Slater’s favor that could possibly throw a monkey wrench in Wikimedia’s public domain copyright position, but I have a hard time picturing satisfaction of the law’s joint work requirement that the macaque intended her contribution to be merged with Slater’s into a unitary whole.
Nevertheless, what I’d like to suggest Slater consider as a more promising argument for sole copyright ownership is this: The macaque simply was Slater’s amanuensis.
Although mentions of the word “amanuensis” have been in rapid decline over the last 200 years, the notion of an artist’s assistant or an author’s scribe receiving no copyright interest — in the resulting copyrightable work that they may help the artist or author fix in a tangible medium of expression — remains alive and well. The same is true for photographer’s assistants.
Judging from the detailed and technical description of Slater’s involvement in the creation of the photos on Slater’s website, I’m thinking this may be the direction he is headed, but stay tuned:
“It was about midday on the second day and the monkeys, about 25 strong of all ages, halted for a rest and a grooming session. It had been a hard day as usual, slashing through tangled and very humid jungle, climbing over and squating under fallen trees, all with a 20kg backpack on full of expensive camera gear. I sat close by them, camera at the ready as always. I must have tuned in to them, because after some time a few brave monkeys began to come closer, and slowly but surely began paying me more attention. I held out my hand and WOW, one held my hand back. Shock! This went on for maybe 15 minutes. They started to groom me, picking through my hair as I knelt on the ground, hunched over my camera, but desperate to record it all. I knew about monkey etiquette from many previous encounters around the world, and this made that knowledge so much more than worthwhile.”
Note how Slater’s knowledge of monkey etiquette allowed him to tune into them and gain the trust of the monkeys with his camera at the ready, as always, laying the groundwork and opportunity for the photos that resulted from his many choices. He’s not just monkeying around.
“I decided to set up the camera on a beanbag on a log, self-timer all set. I was afraid they would run off of course, but they didn’t. Rather, they grabbed my camera! Quick thinking had my guide rushing to save it – lesson learnt. Setting up the camera again, some of the cheekier monkeys had now got bored, and now even my guide had wandered off for a smoke. I was alone and had to encourage the monkeys back to me for my intended contact experience photo. Soon enough, I was jokingly asking for his help again as the monkeys looked increasingly cheeky as they touched the camera with that glint in their piercing red eyes. It was now that I heard some frames reeled off when my guide struggled to keep the camera from little monkey fingers – the scene was set.”
Note how Slater’s decisions, his selection, coordination, and arrangement, and his choices and contributions set the scene for the resulting photos. Not your typical monkey business at all.
“I wanted to keep my new found friends happy and with me. I now wanted to get right in their faces with a wide angle lens, but that was proving too difficult as they were nervous of something – I couldn’t tell what. So I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens. I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens. Was this what they where afraid of earlier? Perhaps also the sight of the shutter planes moving within the lens also amused or scared them? They played with the camera until of course some images were inevitably taken! I had one hand on the tripod when this was going on, but I was being prodded and poked by would be groomers and a few playful juveniles who nibbled at my arms. Eventually the dominant male at times became over excited and eventually gave me a whack with his hand as he bounced off my back. I new then that I had to leave before I possibly got him too upset. The whole experiance lasted about 30 minutes.”
Note how Slater made all the creative, technical, and artistic selections and camera settings, and only then, bingo, he allowed the monkeys to finish his work with a few clicks, almost at his direction, when they snapped the selfies in question. After all, if you pay peanuts, you get monkeys. In the end, it must have been a relief to finally have the monkey off his back.
“It was like the joy of seeing your new baby learn about something new and becoming enlightened with a new toy. They loved the shutter noise, but most of all they loved their own faces, ‘chimping’ away in what seemd to me to be total fun for them……..”
Note how Slater taught the monkeys, and they learned something new, as he allowed them to complete the photos he so carefully envisioned and directed: Monkey see, monkey do selfie!
I’m thinking we’ll soon be reading about Slater’s lawyers donning their monkey suits in court any day now, and I suppose we should be relieved we aren’t dealing with a barrel full of monkeys. . .