Macaque Monkey Photo: Copyright or Public Domain?

Updated on May 6, 2020
Beth Eaglescliffe profile image

Scientist and author, Beth enjoys living life in the slow lane. She takes time to enjoy the little things in life.

Selfie of female Macaca nigra (Celebes crested macaque) using photographer David Slater's camera.
Selfie of female Macaca nigra (Celebes crested macaque) using photographer David Slater's camera. | Source

The Famous Macaque Selfie

The image above is a close-up image of a macaque monkey; a selfie snapped by the animal itself. The monkey’s grinning smile is iconic, and has been shared millions of times via the internet. The photo was created by professional photographer, David Slater, but he made no money from its popularity.

The Wikipedia website published the image saying it was in the public domain and not subject to copyright restrictions. They said that as the monkey had pressed the camera’s button, copyright hypothetically belonged to the animal. But copyright laws don’t mention non-humans, so Wikipedia claimed that the image could be freely copied without any payment being made.

Can a Non-Human Own Creative Copyright?

Can a Monkey Own Copyright?

In 2011, David Slater was on location in Indonesia filming macaques. The monkeys are an endangered species and he planned to use the photos to raise awareness of their plight. A professional wildlife photographer, he spent several days filming in the forest, but the “big money shot” eluded him. To get that special picture, he set the camera with a distance release switch. The British photographer then moved out of sight of the animals, and away from the immediate area.

The macaques approached the camera to investigate and started to play with it. Their curiosity made them brave. They were fascinated by their reflection in the camera lens, and put their faces really close to it. Unaware of what they were doing, they pressed the camera button, and some incredible selfie images were captured.

Under copyright law, ownership of a selfie picture belongs to the person taking the photo; it doesn’t matter who owns the camera. So, the question at the heart of the ensuing legal dispute was this. Can a non-human own the copyright to a selfie image?

What is Copyright?

The United States Copyright Office gives the following definition of the term.

"Copyright is a form of protection provided by the laws of the United States to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works."

25% of the profit from sales of "Wildlife Personalities" by David Slater is donated for conservation work in Indonesia.
25% of the profit from sales of "Wildlife Personalities" by David Slater is donated for conservation work in Indonesia. | Source

Wikipedia Vs David Slater

Wikipedia published several photographs taken by the macaque monkeys with David Slater’s camera on the Wikimedia Commons website. Wikipedia claimed the images were in the public domain, as non-humans are not covered by copyright laws. David Slater disagreed. Without his camera, the monkeys would not have been able to create the stunning photos.

As a professional nature photographer, Mr. Slater’s main source of income was from selling his pictures. These amazing macaque selfies were published in his 2014 book Wildlife Personalities. The matter of who owns the copyright was therefore of crucial importance to him. US copyright law refers only to the protection of artistic work created by people. Animals are not mentioned.

Wikipedia argued that even though the monkey could not claim copyright, neither could David Slater as he did not take the image. The camera button was pressed by a macaque monkey, and so the monkey was the photographer.

What Does the Term" Public Domain" Mean?

Stanford University says that the term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws.

The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.

Full length self-portrait of a female Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia.
Full length self-portrait of a female Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia. | Source

Animal Rights Charity PETA Gets Involved

The dispute dragged on for more than 7 years. At each stage of the process, the US lower Courts determined that David Slater did not own the intellectual copyright to the macaque’s selfie photos. They ruled in favor of Wikipedia’s claim; the photos are in the public domain, and free for anyone to download and use.

In 2015, the animal rights group PETA (People for the Ethical Treatment of Animals) joined the fray on behalf of the macaque. They named the monkey, Naruto, and claimed to act as her advocate. PETA argued that the selfie photos could not be in the public domain, as the copyright was owned by Naruto. They said profits from the sale of the book by David Slater containing the macaque’s self-portraits should be used to benefit the animal. The Court disagreed and ruled against PETA.

PETA re-presented their case to the US Federal Appeals Court. They wanted all profits from the sale of the iconic images to be used to protect this critically endangered species. The Court’s ruling on this was given in 2018.

In the meantime, the UK granted copyright of the pictures to David Slater and his company in Britain. However, without US copyright protection, the photos continued to be freely copied and shared online. David Slater continued his fight with both Wikipedia and PETA in the US. He insisted that he owned the worldwide copyright, as he had set up the tripod and the monkey pressing the camera button was only a minor part of the creative process. During this period, he continued to lose income and picture royalty payments as a result of widespread copying of the images.

PETA Sues Over Monkey Selfies

Appeal Court Rules PETA Was Wrong

The case Naruto et al versus David Salter (brought by PETA on behalf of the monkey) begun in 2015, and reached the 9th U.S. Circuit Court of Appeals in San Francisco in 2017. The Court then took until early 2018 to consider the evidence and pronounce judgement.

Before the judges finished their deliberations, Mr. Slater and PETA reached agreement and made an out-of-court settlement whereby 25% of the profits from the photos would be donated for conservation projects for the macaque monkeys.

The Appeals Court decided to ignore this truce between the warring parties, and went on to make a definitive ruling on the case anyway. In their judgement, the case was called "frivolous." The judges unanimously ruled that animals can’t hold copyright. The video below shows Piers Morgan interviewing Elisa Allen, Director of PETA, and supports the view that PETA’s actions on behalf of Naruto had been a waste of time and money.

Piers Morgan Challenges PETA Director

Further Information

"Crested black macaques, one of seven macaque species on Sulawesi, are considered critically endangered. Taken as pets, hunted for their meat, and faced with the illegal logging of tropical forest for agriculture—which is fragmenting their habitat—the monkeys are suffering serious decline."

The National Geographic

This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.

Comments

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  • Eurofile profile image

    Liz Westwood 

    8 weeks ago from UK

    I can't help but feel sorry for the photographer in this instance. After all he set up and risked his equipment to get the shots

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