Monkey see, monkey do: when does a photograph become a copyright work?

Recently a photograph of a monkey prompted thousands of journalists, artists, lawyers and amateur commentators to weigh in on the subject of copyright. If you're reading that sentence and thinking "But it's a photograph, surely any copyright lies with the photographer?" you've stumbled onto the crux of the problem. The person who took this picture wasn't actually a person. It was a female Celebes crested macaque who pressed the button on photographer David Slater's camera.

The now-famous monkey selfie was taken in 2011 while Slater was in Indonesia. According to the account on Slater's website he spent three days shadowing the monkeys and became an accepted presence. Once the macaques were accustomed to Slater he had the idea of setting up his camera equipment and seeing whether he could take advantage of the creatures' curiosity about his camera to get them to take their own picture. In order to do so Slater had to mount the camera on its tripod, choose the lens, configure the settings and work out the framing of the shot. The only thing left for the monkeys to do was to press the button while playing with the setup and leave Slater to sift through the results.

Slater explained to the BBC that he had made £2,000 (2,512 EUR) from licensing the monkey selfie in the year following his trip. But the photo is now on the Wikimedia Commons free-use media site listed as being in the public domain with the justification "as the work of a non-human animal, it has no human author in whom copyright is vested". The picture now appears in various articles including the Wikipedia page for the species of macaque. In Slater's words, "After it went on Wikipedia all interest in buying it went." He estimates lost revenue in the region of £10,000 (12,560 EUR).

Wikimedia offers a different take on the story of the picture. As part of a drive towards transparency it posted information about takedown requests it had received, one of which was by Slater for the monkey selfie. "A photographer left his camera unattended in a national park in North Sulawesi, Indonesia," says the post. "A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits. The pictures were featured in an online newspaper article and eventually posted to Commons. We received a takedown request from the photographer, claiming that he owned the copyright to the photographs. We didn't agree, so we denied the request."

Historically, photography has had an uneasy relationship with copyright. The mechanical nature of the photography process and the intention of faithfully reproducing a scene rather than altering it in some way meant the photos were not necessarily seen in the same light as other artistic endeavours. Under UK law, copyright in an image depends not on the artistic merit of an image but on the presence of labour, skill or judgment on the part of its creator. These criteria take into account the work a photographer puts into creating a scene, the technical execution at the time, and then all the development and any post-production work. In short, it considers more than the button press moment when determining copyright.

More recently, though, the European Court of Justice judged that portrait photography can be protected by copyright if the photograph "is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph". Free and creative choices doesn't mean things like props or distortions or unnatural colour palettes. Rather, it means the choice of framing, the angle of view, the atmosphere created, the development techniques and the computer software used after the fact. Again, it's a definition which takes into account far more than just who pressed the button.

So let's go back to the monkey selfie. There are two possible answers to the copyright disagreement. One is the Wikimedia argument that copyright cannot be applied because the creator of the work is a non-human animal and therefore not legally entitled to hold copyright. The Copyright, Designs and Patents Act (CDPA, 1988) states that the author of a work is the person who creates it which could be construed as supporting this interpretation provided "creation" is defined as pressing the button on the camera to trigger the image recording rather than the work before and after.

The other answer favours Slater as the copyright holder. He came up with the concept, did all the technical setting up, engineered the situation and then went through the photo set afterwards to pick out usable images and apply any necessary post-production touches like cropping the images. He freely admits that he wasn't the one pressing the button, but UK and EU approaches to copyright in relation to photography would seem to favour an approach which treats the set up and post-production choices in relation to a picture as important parts of the authorship.

The CDPA also has another clause in its section on the authorship of a work which invokes a potentially relevant scenario: "In the case of … [an] artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken." A monkey isn't a computer programme but if the Wikimedia position doesn't require the monkey to have any kind of artistic intent, the author of the computer generated work being the one who engineered the situation could prove a useful analogous situation.

According to Amateur Photographer, Slater was set to speak to lawyers in the US on 11 August before liaising with UK solicitors in relation to the case. He told the site, "I am quite confident that this case will be in court very shortly". It must be noted that the US copyright office has released a draft of its updated copyright practices on 19 August 2014 and in which it is specifically stated a picture taken by a monkey connot be copyrighted. Provided the changes are held-on in the final publication, it is not yet clear whether they would imply that Slater would not be able to pursue legal action in the US1.

The main purpose of copyright law is to promote creativity and progress. A ruling against Slater could have significant ramifications for artists and photographers working on similar or related projects and their willingness to continue. If or when the case comes to trial it will be of huge interest to the photographic and legal communities as well as offering a high profile case study of how copyright laws from different countries and territories are applied when dealing with Wikimedia: a US-based site with global reach.