Do Monkeys Go Bananas for Copyright Ownership?
Updated: May 28, 2019
We’ve all seen selfies; they are virtually everywhere, from social media to the nightly news. People of all ages have latched on to this trend with incredible speed, and the term ”selfie” is generally understood in today’s society. As with all trends, however, legal questions have begun to pop up. Most notably, Ellen DeGeneres’ “Oscar Selfie” has brought up the question of selfie ownership.
While Ellen may have organized the star-studded selfie at the Oscars, legally she was not the owner of the photo, nor the copyright holder. Instead, copyright law tells us that the author of the work is the holder; in this case, the author was Bradley Cooper, who actually took the photo. 17 U.S.C. § 201(a). So, in the case of humans, it is settled – he who takes the photo owns the copyright. But a question still exists; what if the photo was taken by an animal?
David Slater is dealing with just this issue. In 2011, he was in Indonesia taking photos of the wildlife when he stepped away from his camera. While he was busy elsewhere, a monkey swooped down and took a few photos, including a selfie. The image was so good that Slater began licensing it to others for use. Soon, however, Slater’s ownership of the photo began to be called into question. People claimed that the image was in the public domain, and thus open to free use by all. Slater insisted that he was the author, even stating that he anticipated the monkey would take the photo and set up the scene for him.
It is unlikely that Slater will succeed with these claims, as technically he is not the author. But, should we consider this a work for hire situation? Does the monkey qualify as Slater’s “employee?” After all, the Supreme Court is willing to bestow constitutional rights on corporations, such as Hobby Lobby, why not extend those to animals? Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). If corporations can be considered people with personal constitutional rights, why not statutory (copy) rights for animals? Id. at 2768. Aside from this, however, is one other key issue: were enough bananas exchanged in the work for hire agreement to constitute valid consideration? Clearly the question will remain unanswered until this issue is solved.