I really didn’t want to get into this discussion but I’m getting asked by a lot of people for my opinion on the “monkey selfie.” If you don’t know what the story is, you can read about it here.
Okay, here goes… I can’t really address the ownership issue because the photo was made by the animal in Indonesia and the photographer whose camera was used by the animal is not American, he’s a UK subject. So, in short, US law does not apply.
No, it doesn’t matter if Wikimedia is US-based. That would go to the infringement part of the equation, but the first issue here is “who originally owns the copyright in the photo” and I can’t figure any way where US law would apply there. How could it? There is nothing US-related to the creation of this photo: UK photographer, Indonesian monkey, in Indonesia. So, original ownership would be either Indonesian law or UK law (probably UK).
I do find it interesting that the Wikimedia person apparently is saying the photographer can’t claim ownership because of the law but she says, according to the article cited above, “What we found is that U.S. copyright law says that works that originate from a non-human source can’t claim copyright.” Like I said before, U.S. copyright law would not apply as to the original ownership here.
Now, as far as any possible infringement by Wikimedia, well, that would be adjudicated in the US if the organization is US-based (and I think it is but I haven’t researched it). That means a US court might look at the ownership issue as a part of a trial regarding the infringement, but if the copyright is (potentially) a UK copyright, then the validity of the copyright ownership would rely on UK law, not US.
Now, putting the law aside, I think Wikimedia is being a bully here: a large organization, rather than respecting a human who may have rights here (I think does have rights, but let’s put it in terms kindest to Wikimedia), steamrolls the human just because it can. There is no harm to Wikimedia to defer to the photographer here, even if the photographer is wrong about his ownership. But it is in Wikimedia’s best interest to eliminate IP rights (and it has come out against the EU’s “right to be forgotten”) so it will push that agenda no matter what harm it may cause to a real, live human.
I think Wikimedia’s behavior is monkey poo.
______
Update
I was thinking about ownership even Under US law and, not to compare assistants to monkeys, but pro photographers forever have had assistants “hit the button” (and more) but the copyright still vests in the photographer; not just because of WMFH but because the making of the work was entirely effected by the photographer, minus the act of button-pushing. And what about using a timer to make an image? Is there no copyright to vest if the work is made by the use of a timer? Does my iPhone hold the copyright to my timered selfies? I think not…
[also, please remember that I do not approve anonymous comments so don’t even bother trying, haters]
… when monkey used stolen photography equipment and not under any contract from photographer and rightful owner of photography equipment… than lawful ownership of all self images taken by monkey with stolen equipment should transfer to photographer upon return of photography equipment in question… I would think
Now, the monkey didn’t steal the equipment from the photographer. The photographer carefully staged the setting, prepared the equipment and essentially made everything ready so that the monkey could take a picture of himself. That was the whole intent of it.
Nevermind, it doesn’t change anything materially. Relating to the discussion about assistants above, it could be argued that the monkey was merely the button-pushing assistant to the photographer.
In either case, the rights would vest with the photographer.
Sadly no, the monkey did apparently unintentionally grab and use the camera. The photographer has said as much in multiple interviews. It would have been much easier if it had been the photographer’s intention that the monkey do the “clicking” but it wasn’t. Still, as I noted in the follow-up post, the rights (had US law applied) would have vested in the photographer anyway.