Can a Monkey Claim Copyright?

A few years ago, a crested black macaque named Naruto apparently took a selfie using a wildlife photographer’s camera. The photographer, David Slater, wishing to get better close-up photos of a group of macaques in Indonesia, set up his camera on a tripod and attached a cable and button that when pressed would trigger the camera shutter. He hoped that the monkeys would be curious enough to move closer to the camera, stare at their reflection in the lens, and press the button.

In fact, the macaques were quite cooperative, especially Naruto, who snapped several selfies. One of the photos was particularly eye catching—mainly because of the self-aware and somewhat goofy expression on Naruto’s face. Slater sent the photo along with some others to his agent who shared them with various news outlets. The photo went viral.

Then something really crazy happened.

Wikipedia Claims Monkey Image Is in the Public Domain

Wikipedia, the online encyclopedia, used the photo of Naruto grinning at the camera, to illustrate an article about the Celebes crested macaque (aka crested black macaque). However, Slater is not attributed as the creator and copyright holder. Instead, the description of the photo on Wikimedia says, “Self-portrait of a female Celebes crested macaque (Macaca nigra) in North Sulawesi, Indonesia, who had picked up photographer David Slater’s camera and photographed herself with it.” Wikipedia claims that the image is in the public domain because the macaque who snapped the photo is a “non-human” creator”, i.e., not a legal person.

Slater, on the other hand, believes that the photo resulted from his creative choices (choosing the macaque group, setting the camera on a tripod, adjusting the camera settings for the desired image, adding the remote trigger, etc.), thus making him the rightful copyright holder. Some legal experts (in the UK where Slater lives) think that his actions are more important than “the mere physical act of pressing a button” in deciding who has copyright ownership.

In spite of Slater’s objections, Wikipedia refused to take down the photo of Naruto. I’m not reproducing the photo of Naruto here because I think Slater is the rightful owner, and I don’t have permission to use it (I tried to contact him to get permission, but never got a reply). You can see the image at Slater’s website.

But there’s more to the Naruto story.

PETA Sues for Copyright Infringement

In 2015, PETA (People for the Ethical Treatment of Animals) entered the fray by suing Slater for copyright infringement in a California court on behalf of Naruto. PETA’s claim was that the photo “resulted from a series of purposeful and voluntary actions by Naruto, unaided by Mr. Slater, resulting in original works of authorship not by Mr. Slater, but by Naruto”. PETA was saying, in other words, that Slater’s use of the photo of Naruto, on his website and in a book, infringed on the rights of the monkey.

The judge in the case dismissed the suit because animals do not have standing in a court of law and thus cannot sue for copyright infringement. PETA appealed. During the appeal proceedings, Slater and PETA reached a settlement (exact terms unknown). In a joint statement PETA and David Slater apparently agreed that nonhuman animals have rights. Both are concerned about animal rights, and the so-called monkey selfie potentially advances the argument that animals have certain rights. According to the PETA website, Slater agreed to donate 25% of revenues from the photo to the sanctuary where Naruto lives. On David Slater’s website, the amount stated is 10% going towards a “monkey conservation project in Sulawesi”.

In 2018, the Ninth Circuit Court of Appeals rendered an opinion upholding the previous court’s decision to dismiss claims brought by a monkey of copyright infringement. The opinion blasted PETA saying, “PETA’s real motivation in this case was to advance its own interests, not Naruto’s …”.

Works that Lack Human Authorship

What does the law say about what creative works may be copyrighted and who may claim copyright?

In the U.S., copyright law (see The Compendium of U.S. Copyright Office Practices: Chapter 300) says that to qualify as a work of authorship, it must be created by a human. In fact, the Compendium specifically mentions the monkey example in its description of “works that lack human authorship”:

“… the Copyright Act protects ‘original works of authorship.’ 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of ‘authorship’ a work must be created by a human being … Works that do not satisfy this requirement are not copyrightable.

“The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

“Examples:

  • A photograph taken by a monkey.
  • A mural painted by an elephant.
  • A claim based on the appearance of actual animal skin.
  • A claim based on driftwood that has been shaped and smoothed by the ocean.
  • A claim based on cut marks, defects, and other qualities found in natural stone.
  • An application for a song naming the Holy Spirit as the author of the work.

“Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

So in the U.S. at least, an animal cannot be the author of a creative work, and the PETA suit would never have succeeded because the U.S. Copyright Office had already said that animals cannot hold copyright. But what about Wikipedia’s claim that the photo of Naruto is in the public domain?

You may be thinking at this point about situations in which the scientist videographer may find themselves challenged as the creator and copyright owner of a video. For example, wildlife camera traps are triggered by the movements of animals. Could someone claim that the resultant photo or video is the creative property of the animal or is in the public domain because the animal triggered the photo or video?

According to the U.S. copyright law, an author is “the creator of the original expression in a work” (unless the author transfers the copyright to another person or entity such as a publisher). To be copyrightable, the work must be created by a human and also reflect a “degree of creativity”, among other requirements. Thus, the monkey, a non-human, is automatically disqualified as the creator of a copyrightable work. But can the monkey be the creator of the image, i.e., the photographer?

Maybe.

The Wikipedia description of the image of Naruto says that the macaque “picked up photographer David Slater’s camera and photographed herself “. However, Slater’s description (in an interview on This American Life, Episode 631) has the camera set up on a tripod with a remote shutter trigger attached by a cable. The macaques were attracted to the trigger button, picking it up and putting it in their mouths, and eventually pressing it. The sounds of the shutter seemed to further attract the macaques attention and caused them to look into the camera lens. In other words, the monkey did not pick up the camera, look into the lens, smile, and snap the picture. Also, in this case, it’s clear that a human created the conditions whereby the photo was taken. So at a minimum, a human was involved in capturing the image and, I would argue, was the participant wholly responsible for the creative aspect of the photo. The macaque merely participated by mugging for the camera and pressing the button that triggered the shot.

Part of the confusion surrounding the monkey photo is because of its designation as a “selfie”, which implies that the monkey knew it was snapping a photo of itself. Although the macaques may have recognized themselves in their reflections in the camera lens, they were likely unaware that their image was being recorded or that pressing a button caused that recording. That is true of any audiovisual recording of nonhuman animals. A good example is a photo or video captured by a camera trap in which a motion-activated camera is positioned by a human to capture images of animals in a particular location during a particular period of time. The movement of animals triggers the camera to record images, but the animals are unaware of what’s happening. Human action is also necessary to download and process the resultant film. No one could reasonably argue that animals recorded in this way were the photographers. Wikipedia seems to agree, since their entry on camera traps features several examples of camera trap images, all of which are attributed to human photographers who were not even present at the time the images were recorded.

The images captured by Slater’s camera setup in Indonesia are analogous to images taken with camera traps. The macaques triggered Slater’s camera by playing with the button he installed but were unaware that their actions caused a visual recording. And unlike the situation with camera traps, Slater was present and interacting with the subjects of his photography as well as with the camera (to adjust settings).

The question that remains unanswered is whether actions by a human photographer to plan and set up a shot legally qualifies them as the author of the resultant photo, even if the recording is triggered by the animal’s actions.

The Pixar Storytelling Formula

Pixar films tell great stories. Toy Story. Finding Nemo. WALL-E. Up. These and other films have together grossed $ billions and won many awards. For example, WALL-E, one of my favorites, earned $533 million at the box office and several awards, including an Academy Award for best animated feature. How do they do it? Pixar story artist, Emma Coats, says that every Pixar film follows the same narrative formula, which involves six sentences (#4 in a list of 22 storytelling tips). Pixar’s formula seems to be derived from one developed by Kenn Adams, teacher and author, who posted his version (with eight steps) on his blog, Back to the Story Spine.

This is how it works. Each sentence begins with a few words followed by a blank space to be filled in by the storyteller. You can use six steps or eight:

  1. Once upon a time, there was …
  2. Every day …
  3. One day …
  4. Because of that …
  5. Because of that …
  6. Because of that …
  7. Until finally …
  8. Ever since then …

Those of us in science wishing to be better communicators, especially with video, can adapt this narrative formula to tell our science stories.

For example, we might want to tell a story about a research project to show students how scientists work. Here’s one story designed with the eight-step formula:

  1. Once upon a time, there was … a scientist who was interested in how coastal forests called mangroves managed to avoid submergence by rising sea level.
  2. Every day … the scientist read journal articles that said mangrove forests keep pace with sea-level rise mainly by accumulating mineral sediment carried by rivers, tides, and currents.
  3. One day … the scientist collected cores from beneath several mangrove forests in the Caribbean Region and found mostly organic deposits called peat.
  4. Because of that … the scientist wondered if plant matter (dead leaves and roots) might build up enough to help some mangrove forests adjust to changing sea level.
  5. Because of that … the scientist, along with colleagues, conducted a 3-year experiment on a mangrove island in Belize to see if a change in production of plant matter could alter vertical movement of the soil surface.
  6. Because of that … the scientist showed that production and accumulation of mangrove roots were mainly responsible for upward expansion of the soil surface.
  7. Until finally … the scientist was able to report that Caribbean mangroves adjust to rising sea level through biological controls on change in soil elevation.
  8. Ever since then … scientists have had a better understanding of how loss of mangroves may affect vulnerability of tropical coastlines to sea-level rise.

That’s the story of how one of my research projects came about and how it turned out. I published that paper in 2007:

McKee, K.L., D.R. Cahoon, and I.C. Feller. 2007. Caribbean mangroves adjust to rising sea level through biotic controls on change in soil elevation. Global Ecology and Biogeography 16: 545-556.

My formula-guided story illustrates how scientists make observations that lead to new hypotheses, experiments, and a more refined understanding of an ecosystem—suitable for an audience of science students. But I could have told other stories—for example, the challenges I experienced conducting research in a remote, waterlogged, bug-ridden habitat.

The Pixar formula is similar to an older storyline called “The Hero’s Journey”, which I’ve described before. The nine-step Hero’s Journey features a protagonist who encounters a catalytic event, which propels her to take action and to eventually achieve a goal. The Pixar formula is a bit more generic and has several steps, but also involves a conflict and a resolution. Even briefer is the ABT (and, but, therefore) model promoted by Randy Olson.

Take your pick. All of these narrative formulas can aid scientists in telling stories that people can understand and remember. If you want to make a video about a science topic but are having difficulty coming up with a story, give one of these formulas a try.

Predatory Science Journals Adopt a New Tactic: Video

I suppose it was just a matter of time before predatory science publishers latched onto the idea that adding video to their offerings would bring in more money.

Predatory journals, in case you are unfamiliar with the term, are journals, typically lacking in legitimate editorial services or rigorous standards, that will publish your paper—for a fee. If you are a scientist who has published in reputable journals, you’ve likely received one or more invitations from a predatory journal. Some researchers have responded by conducting sting operations—submitting papers containing scientific gobbledygook and fictitious authors—to expose their shady practices.

Now, predatory publishers are offering to post a video for fees ranging from $1,500 to $4,200, according to reporter Tom Spears of the Ottawa Citizen. Spears, known for his hilarious spoofs of predatory publishing, has now produced a video featuring “Dr. Yosemite Sam” that has been submitted to several journals. Despite its suspicious title (Re-Examining the Genetic Bottleneck: Atavistic Regression in Acquired Traits Affects the Outcome for Many Subspecies at the Allelic Level) and cartoon-character author, several journals are apparently considering it for publication or have already posted it. Two have accepted Dr. Yosemite Sam as an editor.

You can read Spear’s article in the Ottawa Citizen here and watch his video below.

Predatory journals turn to video–like this one–for bigger profits

But I’m Not Artistic!

The Starry Night by Vincent Van Gogh, public domain

“If you hear a voice within you say, ‘You cannot paint,’ then by all means paint, and that voice will be silenced” – Vincent Van Gogh

That quote by Van Gogh is about our internal censor—the voice that erodes our confidence and prevents us from trying something new or challenging. Whenever I talk to a group of students or colleagues about making videos about their scientific research, someone invariably responds by saying that they aren’t very artistic and thus cannot be very good at videography. So, why even try?

I understand why they might think this way. Many people are reluctant to engage in any activity that presupposes creativity or artistic ability. Musicians and artists are believed to be somehow different—that they possess inherent talents the average person lacks.

However, as children, we all happily and unselfconsciously draw vivid pictures and make up imaginative stories. Then something happens. A teacher or parent says something discouraging, or our peers make fun of us. Or, as we grow older, other activities draw our attention, and that artistic spark fails to evolve.

I was lucky in that I continued to draw and sketch through childhood. I was an aspiring scientist and spent a lot of time drawing plants, insects, and protozoa that I could see with my microscope. I knew that such detailed drawings were important records for a biologist or ecologist to create. Even after digital devices came on the scene, I continued to sketch in my field notebooks and in the personal journals I kept. My ability to capture an image using only pencil and paper matured. Each drawing was better than the last one. I even became good enough to work as a free-lance scientific illustrator for a while.

My point is that any skill, whether artistic or not, improves over time with practice. With videography, your first attempts will likely not be great, perhaps even terrible. But it doesn’t matter because you will improve with each succeeding video you make. This point  is especially relevant for scientists and other professionals who want to use video as a communication tool. We’ll likely never be as good as a trained filmmaker, but we can still produce effective videos.

In fact, the scientist videographer’s goal is not to be a professional filmmaker but is instead to be a more effective science communicator. Scientists must still learn to communicate using traditional means such as writing articles for publication in journals and speaking at conferences. But we must also be able to use other media to communicate, such as video, which is now a popular way for people to get their information.

And by the way, there is no right way or wrong way to make a video. Worrying about making a technical error or being judged from a filmmaking standpoint is paralyzing. I always advise students who suffer from writer’s block to, “Just write and get your ideas down first; go back later and polish.” Most find that once they are freed from the fear of making a technical error or of not writing the perfect sentence, the words begin to flow.

That approach also works for videography. If you find yourself paralyzed with doubts, just start filming—yourself or others conducting field research or working in the laboratory. Film with the thought that you’ll not necessarily use all of the footage in your video. That view will likely free you to capture a variety of footage and give you some much-needed confidence about filming. I think you’ll find that once you’ve got some footage in hand, the creative juices will begin to flow.

So, if you are disappointed in your first attempts at videography (or are hesitant to even try), remember that even the best videographers were once novices. The difference is that they ignored their internal censor, which was gradually silenced as they made each succeeding video.

For more about this topic see: The Stages of Learning Videography (and Other Skills)

Use Video to Promote the Mission of Your Science Society

This week, the Society of Wetland Scientists (SWS) rolled out their new media initiative and YouTube Channel. Their website explains how video can be used by SWS members to share their work and why video can be beneficial to the SWS mission:

Exposure: Video can raise awareness of wetland issues, new research, and society activities.

Communication: Video augments other forms of communication, such as technical articles, but is a more accessible and modern way to share information that appeals to a broad audience.

Education: Video can enhance the public’s understanding of the importance of wetlands, can inspire current and future wetland scientists, and help in recruiting students to the study of wetland science.

The SWS New Media Team is currently soliciting videos from members and non-members with an interest in wetlands. If you are a wetland researcher or student studying wetlands…or just a wetland enthusiast, consider submitting a video (see the video preparation and submission instructions). If you’ve never made a video before, the following tutorial provides some basic guidelines for making a video with a smartphone.