Monkey Selfie Belongs to the Public Domain!

By Latasha Ramphal

monkey-selfieThis popular monkey selfie recently shocked the media across the globe. In 2011, a monkey took several selfies in Indonesia using photography equipment owned by David Slater, a British wildlife photographer. The photographer made a huge profit from the famous monkey selfie. The best shot of the monkey selfie went viral and ended up on Wikimedia Commons’ online collection.

In 2012, Slater requested that Wikimedia Commons remove the monkey selfie. Slater argued that he owned the copyright in the monkey selfie and therefore could control how the photograph was used. However, Wikimedia refused to remove the monkey selfie from their website. Wikimedia argued that neither the monkey nor Slater owned the monkey selfie.

On December 22, 2014, the U.S. Copyright Office released the Third Edition of its Compendium of U.S. Copyright Office Practices, the manual for registrations and recordations issued by the Copyright Office. The updated Compendium included changes to Chapter 300, which includes guidance on what can be registered for copyright protection. The Copyright Office cited a group of cases called the Trade-Mark Cases to explain that copyright law only protects the fruits of intellectual labor that are founded in the creative powers of the human mind. This principle is defined as the “Human Authorship Requirement.”

Just to make sure that they were clear, and to let us all know that the federal government does pay attention to pop culture events with legal significance, the Copyright Office included “photograph taken by a monkey” in the Compendium as an example of a work that cannot be copyrighted. Other works ineligible for copyright protection include works produced by nature, animals, and plants. The Compendium lists several other examples of works that lack human authorship: a mural painted by an elephant; the appearance of actual animal skin; driftwood that has been shaped and smoothed by the ocean; cut marks, defects, and other qualities found in natural stone; and a song naming the Holy Spirit as the author of the work.

Because the monkey selfie cannot be copyrighted it belongs to the public domain. A work in the public domain may be freely used by anyone. A work falls into the public domain because (1) the term of copyright for the work has expired; (2) the author failed to satisfy statutory formalities to perfect the copyright or (3) the work is a work of the federal government (works by state governments can be protected by copyright).

Wikimedia continues to display the monkey selfie on its website. As artists create new works of art, they should keep in mind that works of art produced by animals, nature, plants, and divine spirits are not copyrightable. This means that you are out of luck even if your cat is a very talented painter.

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