BY:STEVEN C. BEER, JAKE LEVY AND NEIL J. ROSINI
This Q&A was originally published in the Summer 2019 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
Documentaries and television series featuring wildlife have never been more popular. Recent productions have captured breathtaking scenes of rare species in their remote settings. The most compelling segments witness wildlife engaging in primal activities, such as migrating, hunting for food, searching for a mate or surviving dynamic elements fueled by climate change
Producers have developed elaborate photographic strategies to view wildlife undisturbed within their natural habitat. Production campaigns often involve passive production techniques such as motion-activated photography where the camera is locally installed but is engineered from a distant location. Experienced producers understand that wildlife photography is unpredictable. In some instances, curious wildlife subjects may engage the camera and create self-images that are especially precious.
Where wildlife initiates the actual photography, who owns the copyright? This legal issue was debated in the controversy surrounding the recent “monkey selfie” dispute.
In 2011, Naruto, a seven year old Celebes crested macaque in Indonesia, snapped several selfie photos using the camera of British nature photographer, David Slater. Without seeking Slater’s permission, Wikimedia Commons published selfies obtained from newspaper articles about Slater’s playful photographic encounter with the monkeys. Slater argued in a letter that he owned the copyright and requested that Wikimedia Commons remove the selfies from its image library. In support, Slater asserted that he made significant creative contributions to the monkey selfie photographs (supplying the camera, tripod placement, exposure setting, etc.) and that the copyright therefore belonged to him. Wikimedia disagreed: it said the photographs were in the public domain because “copyright cannot vest in non-human authors” and “when a work’s copyright cannot vest in a human, it falls into the public domain.” The U.S. Copyright Office published an opinion in August 2014 that supported Wikimedia’s view stating “only works created by a human can be copyrighted under United States law.” In a subsequent lawsuit filed by PETA on behalf of Naruto against Slater, the Ninth Circuit confirmed that animals have no legal authority to hold copyrights claim.
If the monkey is unable to own a copyright to the selfie photographs, does the copyright belong to the photographer? Experts disagree about the answer. While the prevailing view in the US is that the work falls into the public domain, certain authorities including the UK Intellectual Property Office, favor potential ownership to the photographer under compelling circumstances. The answer seems to depend on whether the photographer has made a meaningful creative contribution to the work. Ultimately, according to the UKIPO, “this is a decision which must be made by the courts.”
The monkey selfie dispute raises issues that may impact wildlife and other documentaries. What is the status of the copyright where the images are captured by motion-detecting hardware? Is any form of passive camera work, sufficient to bestow copyright ownership on the owner of the camera and recording media? Would a court view the mere installation of cameras as a creative contribution sufficient to qualify for protection under international copyright treaties? These questions apply not only to photography equipment in the wild but also to security cameras, police body cameras and dash cameras closer to home, for example. The answers will depend on the location of the shoot, the nationalities of the humans involved, whether copyright laws are re-written and how they are interpreted.