Skip to main content
Part of complete coverage from

When a monkey takes a selfie ...

By Danny Cevallos
updated 4:07 PM EDT, Mon August 18, 2014
STORY HIGHLIGHTS
  • Danny Cevallos: Photog whose camera used in viral monkey selfie wants it off Wikipedia
  • Photo is uncopyrightable, says Wikipedia because animals can't own copyright. But can they?
  • U.S. copyright law holds work must be in tangible medium, be original and have author
  • Cevallos: Animals aren't authors. This selfie doesn't qualify for copyright protection

Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Selfies are everywhere. Even Indonesian macaques are getting into the game. In 2011, two of these Old World monkeys borrowed photographer David J. Slater's camera and reportedly snapped some pictures of themselves. One of the selfies by a female macaque has since gone viral, making its way to Wikipedia's free-to-use website.

Slater asked the site to take down the photo, but Wikipedia asserts the photo is uncopyrightable because animals can't own copyrights.

Danny Cevallos
Danny Cevallos

It raises two interesting questions:

First, can a monkey even acquire copyright in a selfie?

Second, can a human acquire copyright in a monkey's selfie?

It's a depressing idea, that the terabytes of gratuitous selfies snapped by vapid 20-somethings -- serving no other artistic purpose than showing off their outfit or their abs on Instagram -- would be entitled to copyright protection.

Meanwhile, a one-of-a-kind "selfie" by a downright adorable monkey, might not be entitled to protection. But the law -- international and domestic -- is full of grim irony.

In the United States, to qualify for copyright protection, a work (the photograph) must meet three criteria:

(1) It must be fixed in a tangible medium: No problem here. Photographs are a classic example of fixation in a tangible medium, just like paint on a canvas or doodles in a textbook. This is easily satisfied by our simian.

(2) It must be "original." The Supreme Court has observed that this means possessing a shred of creative spark, no matter how crude, humble or obvious it might be. There's an important distinction to be made here, however: Animals might be capable of original works, but mere works of nature cannot qualify.

A tortoiseshell or an ostrich egg is created by a living creature, and may be more symmetrical and aesthetically pleasing than many of the wacky sculptures gracing our federal buildings. But they are the result of survival or procreation, not a creative choice. Therefore, these animal creations are not original -- at least under copyright law.

Selfies turned into museum exhibit
Russian soldier's selfies backfire
Put the phone away if ...

On the other hand, some animals do express themselves creatively, and with that minimal degree of creativity required by the law. It's just hard to say where we draw the line on the evolutionary scale. A finger-painting gorilla is likely expressing originality, but if you dip a beetle in ink and let him walk around on paper, is the beetle showing his creative spark? Or is he simply trying to flee?

Overall, originality is a low threshold, and probably satisfied by the macaque's selfie. It's also a purely academic discussion, because while some animals' work may be original, unfortunately for aspiring macaques, no animal can ever be an "author."

Which brings us to ...

(3) The work must have an "author." In the U.S., the term "authorship" implies that the work must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable. Similarly, in the UK, an author must be a "person."

The bottom line is that monkeys may create works of art, but those works cannot qualify for copyright protection. So, can humans acquire rights in works created by animals? One view would be that (a) if animals are your property, and (b) they create property, then (c) the property of your property is also your property. A dairy farmer owns the egg laid by a chicken; kittens become the property of the owner of the cat that birthed them.

Unfortunately for the photographer here, copyright ownership does not work the way ownership does on the farm. Because the monkey cannot create a copyrightable work, that work can never be copyrightable. On the other hand, if the photographer takes a work by an animal and turns it into an ink-blotted, Andy Warhol-inspired piece of pop art, then he acquires rights in the new creation. But in the case of a monkey's selfie by itself, that photograph immediately and forever falls into the public domain, and can be used by anyone, without permission.

Society's view of animals has certainly evolved over the years. In fact, it has evolved so much that it creates public confusion. The concept of "animal rights" is a compassionate one, but it also runs counter to our current legal view of animals. Animal lovers routinely ascribe human qualities to their beloved pets, and animal rights activists will burn a columnist in effigy for daring to suggest that a dog shouldn't vote or drive a bus.

For now, whether you consider monkeys to be property or peer, their pictures cannot qualify for protection in the Copyright Office. In the case of copyright, that which is created by Mother Nature, is owned by Mother Nature -- which is to say it is owned, not by one of us, but all of us.

Read CNNOpinion's new Flipboard magazine.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
updated 5:39 PM EST, Mon December 22, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
updated 2:51 PM EST, Thu December 18, 2014
Jeff Yang says the film industry's surrender will have lasting implications.
updated 4:13 PM EST, Thu December 18, 2014
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
updated 7:55 AM EST, Wed December 10, 2014
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
updated 12:34 PM EST, Thu December 18, 2014
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
updated 8:42 AM EST, Thu December 18, 2014
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
updated 12:40 PM EST, Tue December 16, 2014
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
updated 11:00 AM EST, Wed December 17, 2014
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
updated 4:54 PM EST, Tue December 16, 2014
Gayle Lemmon says we must speak out for the right of children to education -- and peace
updated 5:23 AM EST, Wed December 17, 2014
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
updated 1:39 AM EST, Wed December 17, 2014
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
updated 3:20 PM EST, Fri December 12, 2014
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
updated 9:56 AM EST, Mon December 15, 2014
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
updated 4:01 PM EST, Mon December 15, 2014
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
updated 9:53 AM EST, Mon December 15, 2014
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
updated 5:53 PM EST, Sun December 14, 2014
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
updated 10:50 AM EST, Sun December 14, 2014
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
updated 4:23 PM EST, Sat December 13, 2014
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
updated 9:26 AM EST, Fri December 12, 2014
Anwar Sanders says that in some ways, cops and protesters are on the same side
updated 9:39 AM EST, Thu December 11, 2014
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
updated 12:38 PM EST, Sun December 14, 2014
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT