When a Monkey Takes a Selfie, Who Owns It?

“Macaca nigra self-portrait (rotated and cropped)” via Wikimedia Commons

This photo of a toothy black macaque is causing big trouble for British photographer David J. Slater — and not because he took the super-cheesy shot pictured to the right.

It’s because technically, he didn’t.

This photo is a monkey selfie. Even though it was Slater’s camera and Slater who enabled the shot, it was the macaque that hit the button, immortalizing his grin for viral posterity. He says the photo happened during a 2011 trip to Indonesia, when a group of mischievous  macaques commandeered his camera.

The photo is a favorite on sites like Twitter and Reddit, and it’s available for use as a public domain image on Wikipedia’s media affiliate Wikimedia.

It’s that last part that doesn’t sit well with Slater. He recently requested the Wikimedia Foundation remove the image, citing a copyright claim. But the foundation declined, stating that Slater isn’t technically the photographer because he didn’t hit the shutter.

Now Slater is considering litigation against the Wikimedia Foundation.

“They’re guessing, and they are ruining my income stream,” he said in a recent interview. “They are acting as judge and jury in a law case and they are going to be in big trouble if a judge eventually rules in my favor.”

Does Slater have a case? Much of the media coverage of his claim last week implied the monkey owned the rights to the photo, with headlines like “Monkey owns rights to selfie? Wikimedia refuses photographer claim.”

But that’s not what the Wikimedia Foundation is saying. If you read the footnote on the photo’s Wikimedia page, you’ll find this: “This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.”

Fair enough? Kraig Baker, an attorney with Davis Wright Tremaine and an instructor for UW’s Communication Leadership program, says Wikipedia is within its rights to post distribute the photo — with one caveat.

“I think Wikipedia is mostly right,” Baker wrote in an email. “The fundamental question is whether or not the photographer showed sufficient creativity in the photo.”

He says that if Slater can prove that his artistic vision contributed significantly to the execution of the photo, he could have a case.

Baker notes: “In other words, the photograph is not reality, but an artificial reality that was created by the photographer because he or she chose the perspective/angle of the shot, determined what should be in or out of the shot, waited for the perfect lighting, ensured that the exposure was correct for the type of picture the photographer wanted to take, etc.”

Ownership of selfies — or ussies, as group shots are now labeled — has been a topic of debate before, perhaps most notably when Ellen DeGeneres posted the most re-tweeted photo in the history of Twitter from the Oscars earlier this year. Ellen tweeted the photo, and it was her phone. But Bradley Cooper, crouched down in the front of the A-list crowd, was the one who hit the button.

If only Bradley’s arm was longer. Best photo ever. #oscars pic.twitter.com/C9U5NOtGap

— Ellen DeGeneres (@TheEllenShow) March 3, 2014

Baker says DeGeneres could actually have a better claim on her “selfie” than Slater, depending on his involvement with the photo.

“In this instance, for me, I think the photographer needs a better demonstration of how his setting of the shot up facilitated the actual shot,” writes Baker. In some media reports, Slater is quoted as saying he walked away from the camera for a while.

In the case of DeGeneres’ selfie, her involvement was pretty clear. Cooper pressed the button. But “Ellen directed it – effectively creating the photo,” writes Baker.

Slater calls the image “partly staged.” Here’s more about how the shot came about, via an interview with ITN.