Back in 2011, an Indonesian macaque snapped a grinning self-portrait. Naturally, it became an Internet sensation. The camera owner, British wild-life photographer Daniel Slater, is now suing Wikipedia for copyright infringement, as the non-profit organization had posted the image to Wikimedia Commons, an online repository of free-use media.
In case the monkey’s rights were unclear, the U.S. Copyright Office timely released an updated Compendium of U.S. Copyright Office Practices that explicitly rejects photographs taken by monkeys as an example of failing to meet copyright’s “Human Authorship Requirement.” For Wikipedia the debate stops there. But determining that the monkey has no rights is not the only inquiry. Depending on the the facts, Slater himself could still be the author.
According to Slater he fraternized with the monkeys for days, attempting to become one with their barrel. Ultimately aiming for a perfect monkey selfie, Slater wanted to make the monkeys comfortable enough to allow leaving a camera with a remote shutter release. After going through hundreds of blurry and ill-composed photos, Slater selected and posted the now famous shot on the web.
According to the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony, it wouldn’t matter if the monkey hit the button so long as Slater was the creative genius behind it all. The monkey was simply following Slater’s direction, acting as an assistant of sorts. But Slater may have admitted to it all being an accident in which he absent mindedly left thousands of dollars worth of equipment, set up for a perfect monkey-selfie, alone in a jungle full of monkeys. Fortuitously, he came back just in time to save the camera from destruction and to discover this perfect shot. Likelihood issues aside, it seems accidental genius is still genius in the eyes of the law, and ownership vests in the eye creative enough to recognize it.
A photograph must be at least minimally creative to obtain copyright protection. Such originality can be met in one of three ways: rendition (at issue in Burrow-Giles), creation (e.g., Cindy Sherman’s photography), or—at issue here—timing. Timing is perhaps the most controversial, given the luck’s strong role in achieving the outcome. Garry Winogrand’s “street photography” is a prime example of originality in the timing. Known for his portrayal of mid-century American life, Winogrand is said to have snapped a roll of film walking only a block. Shooting full-frame and trusting his initial choices, he scarcely edited in the dark room. He captured his famous shots partially by virtue of being in the right place at the right time, and partly by being creative enough to notice what was worth capturing. Central Park Zoo, for example, depicts a black man and a white woman each holding chimpanzees that are dressed like children. Winogrand not only saw a well-composed image through his lens, but recognized a light-hearted twist to a spectacle wrought with racial tension.
But for all we know, Winogrand could have snapped the shot without recognizing the shot’s aesthetic value until he was staring at the contact sheet back in the studio. Thankfully, copyright law makes no distinction as to when the photographer has the idea. Some, like wild-life photographer Thomas Mangelsen, seemed to have the idea in mind well before the shot. To capture Catch of the Day, he journeyed to Brooks Falls, Alaska at the height of the annual salmon run. Though there are of course evidentiary issues to artistic intent, there are evidentiary, why should we bother trying to qualify intent when rewarding post-shot creative recognition provides the exact sort of incentive to innovate that copyright strives for?
If Slater truly had the idea to ‘take’ a ‘monkey selfie’ all along, he seems to have done everything he could to achieve it, and persistence and luck worked in his favor just as it did for Mangelsen. If Mangelsen used a self-timer or an assistant to capture his shot, there would still be no question whether he held the copyright. And who’s to say that the artist who foresees an image’s aesthetic value is more creative than one who recognizes it? Certainly not the art world. Just see the fame endured by Winogrand and his contemporaries like Alfred Eisentaedt, Henri Cartier-Bresson, and Robert Frank. Copyright law rewards the creative eye that recognizes the art, not the hand that happens to press the shutter release. Even a monkey could do that.
Nicole Lieberman is a J.D. candidate, ’16, at NYU School of  Law.