“Nobody” Can’t Hold a Copyright, Which Means Sometimes, Nobody Holds a Copyright

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So, thanks to Wikimedia’s recent publication of its transparency report, the monkey selfie is back in the news. Some background: in 2011, a British photographer traveling in Indonesia had his camera stolen by a macaque. It took a number of photos of varying quality, including this great little self-portrait. The image quickly went viral, followed by takedown requests by the photographer. Which immediately raised the question—wait—does he own the copyright in the photo?

One likely answer is, no, he doesn’t. This has been discussed at length (such as here and here) by copyright wonks. What I want to talk about today is a dilemma that’s nicely encapsulated by this Buzzfeed coverage of the story. Basically, there’s a bit of a red herring going around, saying that Wikimedia claims that the monkey owns the copyright. There are a lot of jokes and some (comedic?) indignation that a monkey might have more of a right to a work than a human.

But that’s not quite true. The claim isn’t that monkeys have IP rights—it’s that no one owns the copyright in the photo. A lot of people seem to take issue with this, insisting that, if the monkey doesn’t own the copyright, the photographer must—that someone has to own a copyright in the photo.

But that just isn’t true.

This is the definition of the public domain—things that are not protected by copyright. We’re used to thinking of the public domain as consisting of things that were in copyright and then aged out of it after a length of time, but that’s just a part of it. There’s also works created by the federal government, and things that simply can’t be protected—like ideas, methods of operation, or discoveries.

The fact that this photo was created recently does play with our instincts a bit—it seems strange for a newly-created image—particularly such a compelling one—might not have a legal author. But our instincts are an unreliable guide in unusual situations like this one.

So is absolutely definitive that this work is in the public domain? No—there’s a non-frivolous case to be made that post-processing might be enough creative effort to give the photographer a copyright. But the larger point is this: we need to stop assuming that every image, sound recording, or innovation is owned, or even ownable. There are things that do not belong to anyone—they can be used by all. As easy as it is to get a copyright (and it shouldn’t be too hard), copyright protection is not the default state of the world. The public domain is.

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