A few months ago I wrote about Richard Prince, who sold lightly edited screenshots of other people’s Instagram posts for upwards of $90,000 (this after decades of rephotographing and editing other people’s works). In another bizarre copyright and fair use saga from a few years ago, British photographer David Slater found himself in dispute with Wikimedia over the granting of a copyright to a picture taken on Slater’s camera—but by a macaque.
While traveling in Indonesia, Slater set up his tripod and, by good fortune, a couple of macaques clicked the camera’s button to take “selfies.” These pictures made their way around the world as viral sensations, but were however not treated as copyrightable. Slater claimed that his pictures did not belong in Wikimedia Commons—a repository for media in the public domain—as he should hold the copyright for them. However, copyright law specified that non-human animals were not eligible to hold copyright, and that Slater did not partake in the creation of the photograph (he had stepped away from the camera when the macaques snapped their own pictures) and could thus not himself hold copyright either. In short, the law and the media determined that—because Slater did not himself click the camera’s button—copyright could be held neither by the macaques nor the photographer.
In order for Slater to have a legitimate claim to the work’s copyright, he would have had to make significant alterations to the image that would substantially change the composition of the work, and allow him to hold copyright over that edited product.
This, in comparison with Richard Prince’s screenshots, brings up interesting questions of intellectual property, once again in the context of art. Firstly, why are Prince’s incredibly light alterations of Instagram posts (at most, he added comments) allowed, while Slater must see his work fall immediately into the public domain? Why must Slater “substantially” alter the work’s composition in order to own copyright over the edited work, but Prince can get away simply adding comments to the bottom? In short, what is enough of an “alteration” to make a work new, valuable, and an “original” contribution that deems copyright protection?
Moreover, the law is not on Slater’s side presumably because—even though he set up the tripod and the equipment was entirely his—Slater did not himself press the camera’s button. Which then begs the question: for a medium such as photography, or film, who is the author of a particular work? After all then, while it is clear that a production studio owns the rights to a feature film, why doesn’t our treatment of Slater’s predicament imply that the person physically behind the camera owns the rights? Or the director who envisioned each shot? Or the screenwriters who created the plot and the dialogue (if any)?
To what extent does “originator of the idea” count when it comes to authorship? Is the owner of a copyright the hand that laid down the paint, or clicked the button, or moved the camera? Or is it the person whose idea it was to lay down that paint in such a fashion, or click the button at the particular scene? Should intent to create ever play a role? After all, the macaque was likely fooling around with a strange object that belonged to Slater—who clearly desired to capture a good shot.
The boundaries of art and concepts keep getting pushed further and further with time. Sadly, however, the boundaries of copyright protection and our definitions of authorship and originality do not extend as quickly. Why could Marcel Duchamp take a porcelain urinal, call it a fountain, and make an innovative and avant-garde piece of art? Does the act itself of naming constitute a valid reinterpretation of an object and—as such—an original work of art? If so, Slater’s take on a macaque’s snapshot of herself—after the photographer setting up the requisite equipment to do so—as a “selfie” might then be considered an original work of art in itself.
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