Wikipedia:Wikipedia Signpost/Single/2016-01-20

Every day, Wikimedians on projects such as the English Wikipedia and Wikimedia Commons debate and decide whether specific pieces of content such as images should be kept and used, or should be deleted. Most of these discussions are routine and not of interest to more than a handful of people, but there are exceptions. In this column, which I have adapted and updated from my comments in a recent deletion discussion on Commons, I discuss such an exceptional case in which our collective decision whether or not to keep and widely use a set of images has been broadly publicized, and I challenge the decision we have thus far reached.

In 2011, the wildlife photographer David Slater traveled to the Indonesian habitat of a group of macaque monkeys. He set up a camera to photograph the monkeys, but then stepped away from the camera for awhile, during which time one of the monkeys pressed the photo button several times. (I had been under the impression that a monkey's pressing the button was inadvertent on Slater's part, but I see that our mainspace article indicates Slater allowed this deliberately.) Some of the resulting photographs of the monkey looking directly into the camera, christened by some as the "monkey selfies," have become iconic. Extensive discussion has followed both on- and off-wiki of whether Slater has legal or, at least, moral rights to the photographs, or whether he is without rights because he is not the one who pressed the button. In the Wikipedia context, the question becomes whether the "monkey selfies" can be freely used on-wiki, and equally important, whether they should be.

When the question "who owns the monkey selfies?" first arose, I perceived it as just an interesting parlor-game, or perhaps as something suited for my "final exam for wikilawyers", but I did not pay too much attention, because I doubted that the issue's practical importance were worth the energy being spent debating it. My view shifted more recently as I learned more about the person behind the photograph, who is deeply unhappy with Wikimedia, and who has asserted in the press, though not (yet?) in court, a very real claim of rights.

To date, Wikimedia and Wikipedia have taken the position that the photographs are in the public domain and thus that they may, and will, be freely used on our projects for any purpose. I challenge that outcome and suggest that we change course, not merely because of legal uncertainty but because respecting the human photographer's rights in these photographs is the right thing to do. If we respect the intellectual property rights of photographers in general, as we must, then I believe our approach to this particular set of photographs cannot be justified.

It is undisputed, because Slater disclosed it (if he had not no one would know), that the monkey pressed the button on the camera. It appears to be equally undisputed that the monkey did not make any creative or substantive decisions relating to the photographs. In particular, it certainly was not a crested macaque monkey who (1) acquired a camera, (2) studied photography and become a photographer, (3) decided to use the camera to take photographs of wildlife, (4) decided to bring the camera to a particular location in Indonesia on a particular date, (5) selected a particular image or creature to be photographed, (6) set up, configured, or adjusted any of the settings on the camera, (7) had any knowledge that if he pressed the button, the result would be a photograph, much less (8) had any knowledge that if he pressed the button, the result would be a photograph of himself, or even (9) knew what a camera is, what a button is, or what a photograph is. It was Slater who did, or had, or knew, each of these things.

I thus have little difficulty in recognizing Slater as the intellectual parent of these photographs, at least to the extent of not wishing to see them used on-wiki without his consent, and indeed over his express and deeply felt objection. Historically, Wikimedia projects have taken a fairly strict view of what constitutes potentially copyrighted material, which either should not be used at all or may be used only in limited circumstances and with a clearly stated fair-use rationale. Over time, this strictness has resulted in some unnecessary deletions, based on purely notional or theoretical copyright claims that were never realistically going to be pressed by any rightsholder in the real world. In that context of bending over backwards to honor borderline copyright claims, we should think long and hard before we insist on continuing to use a particular photograph over the express objection of an individual who, at the least, has a colorable and reasonable argument to be both the practical and the legal author and owner of the material.

Although I am a lawyer, I do not find it helpful to view this primarily as a legal question. The legal background here is actually a bit absurd. Last year, an animal-rights group brought a lawsuit in the United States District Court for the Northern District of California (San Francisco) seeking a declaration that the photographs were copyrightable and that the copyright belongs to the monkey (See previous Signpost coverage). That lawsuit predictably went nowhere. Indeed, a defendant's brief in the case put it beautifully: The words "a monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright" belong in a comedy sketch, not a copyright action; and "monkey see, monkey sue" is not good law.

That outcome did not, however, resolve the more serious question of whether the images, under US law or any other law, belong to Slater or are in the public domain. The US Copyright Office has not ruled on the copyrightability of these specific images, but has issued guidance, perhaps with this dispute in mind, describing "a photograph taken by a monkey" as uncopyrightable. I don't think, however, that anyone at the Copyright Office delved into the extent of human contribution and creativity in the creation of these particular images, nor am I sure that the Copyright Office's interpretation here is right—and let's not even get started on the choice-of-law issues that might be involved. Enough with the legalities: at a minimum, I believe Slater can make a reasonable and defensible claim that the copyright is his, and more importantly, that it should be his.

"Free content" projects such as Wikimedia should not be in the business of perpetuating bizarre and unnecessary disputes over rights ownership, challenging the rights of persons who either are the owners, or in good faith make a defensible claim that they are the owners and are certainly the intellectual creators, of a set of images. Now, to be sure, this principle can be taken only so far: there are times, such as in certain freedom of panorama disputes, or where attempts to recapture large categories of public domain images ("reenclose the common"), or other types of overbroad intellectual property claims would significantly decrease freedom of expression, that taking a stand will be justified. But such cases have been rare, and this is not one of them. The factual scenario underlying this image is a bizarre one, unlikely to recur, certainly unlikely to recur with frequency. Any loss of intellectual freedom that would be associated with our choosing to delete these images or at least to minimize their use would be very slight.

It certainly would reflect questionable priorities for Wikimedia or Wikimedians to expend either scarce legal resources or our goodwill on litigating such an issue if, as is reportedly possible, Slater were to assert a claim. Sometimes, of course, we must spend money and resources and goodwill to defend an important principle, and we have collective resources devoted to precisely that endeavor, to be put to use if and when we need them. But defending the dubious principle that "if a photographer sets up a shot but somehow an animal presses the button, we will ignore the intellectual property claims of the photographer" is not such a case. And, significantly, it is not the case that we must use every image that we legally may, or arguably may; surely we are free to consider what is fair and ethical, and not merely what is lawful, in making these decisions.

I have read through much of what has been written about this subject over the past couple of years and I am disappointed by some editors' insensitivity to what is, at least, a substantial rights claim asserted in good faith. I am also troubled by some comments made over time that, while I would not say they were made for the purpose of bullying Slater, at least have the foreseeable effect of making a show of his powerlessness to control the reuse of images that would not exist but for his efforts, expertise, and expense.

One of the legal memoranda that Slater's lawyer submitted in the federal case is worth quoting as it summarizes his position concisely and well. I recognize that I am quoting an advocate's words rather than from a neutral source, but I find these points persuasive:

I understand that there are those who think that this issue is a tempest in a teapot; as I said, I was until recently in that position myself. And frankly, I can imagine that someone else who found himself or herself in Slater's position might have chosen to go along and not make a fuss and to be "a good sport" about the whole thing. He might have figured that the unique circumstances were not going to repeat themselves, and that the attendant publicity might be positive, for his reputation and business and for the causes of nature photography and protection of the wildlife that he adores.

But it is not for me, as a stranger to Slater and to his life's work, to say that he made the wrong choice by reacting instead as he has. I realize that this may seem a harsh judgment, but in my view, we dishonor the cause of free knowledge when, as the largest free-content set of websites in the world, we treat him as we have.

Ira Brad Matetsky is a New York attorney. He has been an administrator on English Wikipedia since 2007 and was a member of the English Wikipedia Arbitration Committee from 2008 to 2014. This article originally appeared in his userspace following a deletion discussion on Commons and is reprinted here in modified form with his permission.