As some of you may recall (although it’s been three years, which doesn’t seem possible), in 2011 we discussed an intellectual-property dispute involving pictures taken by a monkey. See “Legal Questions Raised by Success of Monkey Photographer (July 7, 2011); “In Defense of Monkey Copyright” (July 13, 2011).

I’m enjoying the fact that what doesn’t seem possible is that it’s been three years, not that we were discussing an intellectual-property dispute involving a monkey.

Anyway, as a refresher, the issue arose because the monkey did not own the camera, nor was he authorized to use it (so it wasn’t a “work for hire”). The photographer, David Slater, had set his camera on a tripod and then walked away for a minute, and when he did a monkey hijacked it and took “hundreds” of unauthorized pictures. Several of which were particularly great.

Therein lay the problem: because they were great, people wanted to republish them. But who, if anyone, has the rights to do that? Because, at least for now, copyright is limited to human beings (yes, there is precedent), the issue is really whether Slater has the rights or the picture is in the public domain. (Whether posting a sample is “fair use” is a different question, one I obviously resolved in favor of yes.)

The issue is back in the news this week (Washington Post, Techdirt, etc.) because Slater has been suggesting he may sue Wikimedia, which continues to make the full-resolution picture available for free. Wikimedia (like Techdirt) says its lawyers have concluded the picture is in the public domain, basically because the monkey has no IP rights and Slater admits he did not take the picture personally, so there is “no one to bestow the copyright upon.”

Techdirt’s analysis was partly based on this U.S. Copyright Office rule, which states: “In order to be entitled to copyright registration, a work must be the product of human authorship.” I think that’s generally but not exactly right, because there’s a difference between copyright registration and the copyright itself. As this rule notes, “In general, the copyright law does not require registration as a condition of copyright protection,” although it provides important advantages if you are trying to enforce the copyright. That is, a work is technically protected as soon as you create it—assuming it’s copyrightable. But the Copyright Office also takes the position (Rule 202.02(b)—”Human author”) that “authorship” necessarily implies that “for a work to be copyrightable, it must owe its origin to a human being.” That’s basically the same thing Techdirt was saying.

But still, the problem here is that you could certainly argue that the work does “owe its origin to a human being,” at least in part. I mean, the monkey didn’t buy a camera, take it out there, and set it up in a particular spot. David Slater did that. He didn’t frame the shot and he didn’t push the button. But Rule 202.02(b) goes on to say that “Materials produced solely by nature, by plants, or by animals are not copyrightable.” Emphasis added.

I haven’t yet seen any legal arguments from Slater’s side (though they may be out there). His main argument so far seems to be that he spent a lot of money to go to Indonesia, and that he could be making a lot of money from the picture(s) if people weren’t handing it out for free. That is very understandable though it’s not a legal argument. This is how the guy makes his living. And it seems like he could argue that he is at least partly responsible for the work, so even if the monkey is SOL, the human involved should get something. Exactly how that might work, though, I don’t know.

Update: You know who else stole art?

“It’s potentially being run by people with political agendas,” Slater said of Wikipedia. “The people who are editing it could be a new Adolf Hitler or a new Stalin … They’re using whatever suits their agenda.”

Huffington Post (via @cathygellis). Wow.

You know who else was a copyright holder, though? Yep. (I wasn’t sure Hitler had ever been invoked in a copyright dispute before, so I googled that.) In fact, according to this, in 1939, Hitler’s publisher actually sued in the U.S. to enforce that copyright, and won.

I guess I found that on Wikipedia, though, so … you know.