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 THE CASE FOR COPYRIGHTING MONKEY SELFIES

JonathanSiderits*

I. INTRODUCTION

In 2011, British photographer David Slater traveled to an Indonesian

forest where he spent three days photographing a troop of crested black
macaques. During one of his photo shoots, Slater set up his camera on
its tripod for the monkeys' use, and a number of photographs taken by
the monkeys were eventually shot.2 While most of these shots were out
of focus and unusable, a few were surprisingly well taken. The self-
portraits captured in these shots have since been referred to as the first
ever "monkey selfies." 3 Due to the unique circumstances leading to
their creation, these photographs generated considerable publicity and
captivated a widespread Internet audience.4 The popularity of these
photographs initially was a huge financial success for Slater; he
reportedly received E2,000 from buyers in the year after the photographs
were taken. 5
However, it did not take long for others to begin capitalizing on the
photographs without permission or payment. The Wikimedia
Foundation, the non-profit Internet giant that operates such staple
websites as Wikipedia, posted one of the photographs on its image
repository, Wikimedia Commons, where the image was freely available
for public use. At one point, the photograph was even included in a
Wikipedia article about the crested black macaque species, although it

* Associate Member 2014-2015, University of CincinnatiLaw Review.

1. Louise Stewart, Wikimedia Says When a Monkey Takes a Selfie, No One Owns It,
NEWSWEEK (Aug. 21, 2014, 9:31 AM), http://www.newsweek.com/lawyers-dispute-wikimedias-claims-
about-monkey-selfie-copyright-265961. The crested black macaque, or macaca nigra, is a critically
endangered species of Old World monkey that inhabits certain islands of Indonesia. Celebes Crested
Macaque, WIKIPEDIA, http://en.wikipedia.org/wikilCelebes-crestedmacaque (last visited Feb. 14,
2015).
2. Stewart, supra note 1.
3. Id.
4. Id.
5. Photographer 'lost £10,000' in Wikipedia monkey 'selie'row, BBC NEWS (Aug. 17, 2014),
http://www.bbc.com/news/uk-england-gloucestershire-28674167.
6. Wikimedia Commons is a collection of more than 20 million images and videos that
Wikimedia provides without cost to anyone online. David Slater's Monkey Selfie Photoshoot - the
unseen pictures, THE TELEGRAPH,
http://www.telegraph.co.uk/news/picturegalleries/earth/ll 1021255/David-Slaters-monkey-selfie-
photoshoot-the-unseen-pictures.html?frame=3000650 (last visited Feb. 14, 2015).
7. File:Macaca nigra self-portrait (rotated and cropped).jpg, WIKIMEDIA COMMONS,
https://commons.wikimedia.org/wikilFile:Macacanigraself-portrait_(rotated-andcropped).jpg (last
visited Feb. 14, 2015).

327
328 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

has since been removed. 8

Since petitioning the Wikimedia Foundation in January 2014 to have
the image removed, Slater has been locked in a dispute over whether he
owns the copyrights to the photographs.9 Slater estimates that he has
lost "tens of thousands of pounds" in income as a result of Wikimedia
Commons publishing the images.' 0 He blames Wikimedia for his lost
earnings and for destroying his business, because the organization
actively has encouraged the public to use the images without
compensating Slater by publishing his photos online and providing a
link to download a high-resolution copy.' 1 While Slater successfully
has sold the photographs to various purchasers, Wikimedia is one of
several entities that did not purchase, or even seek a license, prior to
using the photograph.12 Wikimedia defends its actions arguing that
because Slater did not take the pictures himself he does not hold a
copyright.' 3 It maintains the monkeys are the true authors of the works,
and because monkeys cannot own copyrights, the photographs are in the
public domain and thus may be freely and legally used by anyone.14
Slater has threatened legal action against unlicensed users of the
photographs, claiming: "There's a lot more to copyright than who
pushes the trigger on the camera. I set up the shot, I was behind all the
components in taking that image."' 5 In particular, Slater claims that
during his three days spent shadowing the monkeys in Indonesia, he
"became accepted as part of the troop . . . they touched me and *roomed
me . . . so I thought they could take their own photograph." Slater
allegedly conceived the idea to set up his camera on its tripod for the

8. See Celebes Crested Macaque, WIKIPEDIA

(WAYBACK MACHINE INTERNET ARCHIVE) (Dec. 8, 2013),
https://web.archive.org/web/20131208051727/http://en.wikipedia.org/wiki/CelebesCrestedMacaque.
9. Devin Coldewey, Monkey Selfie on Wikipedia Drives PhotographerBananas, NBC NEWS
(AUG. 6, 2014, 7:59PM), http://www.nbcnews.com/tech/internet/monkey-selfie-wikipedia-drives-
photographer-bananas-nl 74251.
10. THE TELEGRAPH, supra note 6.
1. Id.
12, BBC NEWS, supra note 5.
13. See Keir Simmons et al., Selfie Monkey Was 'My Assistant,' Legal-Battle Photographer
Says, NBC NEWS (AUG. 7, 2014, 7:56 AM), http://www.nbcnews.com/tech/internet/selfie-monkey-was-
my-assistant-legal-battle-photographer-says-n 74781; see also Mike Masnick, Monkeys Don't Do Fair
Use; News Agency Tells Techdirt To Remove Photos, TECHDIRT,
https://www.techdirt.com/articles/20110712/01182015052/monkeys-dont-do-fair-use-news-agency-
tells-techdirt-to-remove-photos.shtml (last visited Feb. 14, 2015).
14. Id.
15. THE TELEGRAPH, supra note 6. There is some inconsistency as to whether Slater actually
engineered the shot at all, or if the monkey seized the camera while Slater was away. See, e.g.,
Masnick, supra note 12. For purposes of this article, the author will assume that Slater did in fact set up
the shot in the manner in which he has claimed.
16. BBC NEWS, supra note 5.
2016] COPYRIGHTING MONKEY SELFIES 329

monkeys to use after one of the monkeys spontaneously grabbed the

camera and took a few blurry shots of the surrounding forest.1 7 Other
steps that Slater took to facilitate the photographs included: setting up
the camera with a wide angle lens; configuring the camera's settings for
a facial close-up (e.g. predictive autofocus, motorwind, and flashgun);
framing the shot; and adjusting the exposure.' 8 By Slater's account, he
even kept one hand on the tripod while the monkeys began touching the
lens and playing with the camera and its buttons. They watched their
reflections in the lens and grinned at themselves while they pressed the
shutter button, capturing the so-called monkey selfies. 2 0
Wikimedia has expressed its rejection of Slater's argument that he
substantively contributed to the photographs enough to warrant
copyright protection.21 At one point, the Wikipedia page on animal-
made art-which discusses the monkey-selfie controversy-quoted
Slater as claiming he had "engineered" the shot; however, the
"engineered" text provided a hyperlink to Wikipedia's article on the
long-rejected "sweat of the brow" legal doctrine. Clearly, Wikimedia
23
finds Slater's position is without merit.
This dispute has spurred controversy over whether works such as
Slater's, which blur the line between copyrightable works of human
authorship and uncopyrightable "works of nature," should be protected.
Part II of this Casenote discusses the relevant background information
needed to understand the underlying purpose of copyright protection in
the United States, as well as the requirements for obtaining a copyright.
Part II further discusses the recently released public draft of the
Copyright Office's third edition of the Compendium of U.S. Copyright
Office Practices, which clearly alludes to the Slater controversy, as well
as the Seventh Circuit's decision in a case analogous to Slater's, Kelley

17. Stewart, supra note 1; David Slater, DJS PHOTOGRAPHY,

http://www.djsphotography.co.uk/Tropical%20Forests/Sulawesi%2OMacaques.htm (last visited Feb. 14,
2015).
18. BBC NEws, supra note 5; Stewart, supra note 1; THE TELEGRAPH, supranote 6.
19. THE TELEGRAPH, supra note 6.
20. Id.
21. Stewart, supra note 1.
22. Animal-Made Art, WIKIPEDIA (WAYBACK MACHINE INTERNET ARCHIVE) (October 11,
2014), https://web.archive.org/web/20141011073012/http://en.wikipedia.org/wiki/Animal-madeart.
While the contents of Wikipedia pages are user-generated, the article's position was clearly consistent
with Wikimedia's.
23. See Wikimedia Foundation Transparency Report/Requests for Content Alteration
&

Takedown, W1KIMEDIA,
https://meta.wikimedia.org/wikilWikimedia Foundation TransparencyReport/RequestsforContent_
Alteration_%26_Takedown#Monkey-Selfie (last visited Feb. 14, 2015) ("We received a takedown
request from the photographer, claiming that he owned the copyright to the photographs. We didn't
agree, so we denied the request.").
330 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

v. Chicago Park District. Part III of this Casenote presents various

arguments in favor of granting Slater copyright ownership of the
photographs and criticizes the Kelley decision. Finally, Part IV of this
Casenote summarizes Slater's strongest legal arguments and concludes
that, if Slater pursued legal action against entities such as Wikimedia,
ultimately, he would prevail.

II. BACKGROUND

A. The Law Governing CopyrightProtection

The United States Constitution grants Congress the power "[t]o

promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries." 24 Acting under the power granted by this
clause, also known as the "Patents and Copyrights" clause, Congress has
enacted a series of Copyright Acts establishing the United States
Copyright Office, setting forth the requirements for copyright
registration, outlining the basic rights of copyri qt owners, and detailing
the length or "lifespan" of copyright protection. Notably, registering a
work with the Copyright Office is not a prerequisite to copyrightability,
but a work must be registered before an infringement suit may be
brought. 2 6
To merit copyright protection, a work must be an "original work[] of
authorship fixed in [a] tangible medium of expression."2 Therefore, the
fundamental criteria for copyright protection are originality and fixation
in a tangible form.28 Under the Copyright Act, a work is considered
fixed in a tangible medium when "its embodiment in a copy . . . by or
under the authority of the author, is sufficiently permanent or stable to
permit it to be perceived, reproduced, or otherwise communicated for a
period of more than transitory duration." 29
The inter-related concepts of originality and authorship are less
straightforward than the fixation requirement and require an analysis of
relevant case law to be fully understood. Moreover, the potential
tension between fixation and originality must be addressed, as this

24. U.S. CONST. art. I, § 8, cl. 8.

25. The Copyright Acts have been codified in Chapter 17 of the United States Code. Currently,
the Copyright Act of 1976 is the primary basis of U.S. copyright law.
26. 17 U.S.C. § 411(a) (2008).
27. 17 U.S.C. § 102(a) (1976).
28. See, e.g., 2 WILLIAM PATRY, PATRY ON COPYRIGHT § 3:26 (quoting H.R. Rep. No. 1476,
94th Cong., 2d Sess. 51 (1976); S. Rep. No. 473, 94th Cong., Ist Sess. 50 (1975)).
29. 17 U.S.C. § 101 (2010).
2016] COPYRIGHTING MONKEY SELFIES 331

tension clearly is at work in the Slater controversy. Finally, copyright

law's hallmark principle that only expressions, and not ideas, are
protected also will be discussed.

1. Authorship

The term "author," despite appearing as an explicit requirement for

copyright protection in the Constitution, is not defined by statute. 3 0 As
interpreted by the Supreme Court, the term generally implies that the
work must, in some way, owe its origin to a person.31 However, one
need not necessarily be the creator of a work to be an author. For
example, under the work-made-for-hire provision of the Copyright Act,
an employer or commissioning party can satisfy the authorship
requirement, even if he added no copyrightable expression to the work
at all.32 In fact, a work need only be created in the scope of one's
employment for authorship to be granted to the employer.33 In the case
of third party contractors, the work must be commissioned, and the
actual creator must sign an agreement that the work will be deemed a
work-made-for-hire for authorship to be granted to the commissioning
party.34
The authorship requirement was explored by the Supreme Court in its
decision in Burrow-Giles Lithographic Co. v. Sarony.35 In Burrow-
Giles, the Court held that a photograph was entitled to copyright
protection despite the fact that it may be considered a mere mechanical
36
reproduction of some object. The Court found that a photograph is a
product of the photographer's "intellectual invention" and was produced
"entirely from his own original mental conception." 37 Therefore, the
photographer was considered the author of an original work. In making

30. See PATRY, supra note 28.

31. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, Ill U.S. 53, 58 (1884).
32. 17 U.S.C. § 201(b) (1976) ("In the case of a work made for hire, the employer or other
person for whom the work was prepared is considered the author for purposes of this title, and, unless
the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the
rights comprised in the copyright.").
33. Id.; see also 17 U.S.C. § 101 ("A 'work made for hire' is-{l) a work prepared by an
employee within the scope of his or her employment; or (2) a work specially ordered or commissioned
for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as
a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer
material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them
that the work shall be considered a work made for hire.").
34. Id.
35. See Burrow-Giles, Ill U.S. at 55.
36. Burrow-Giles, Ill U.S. at 60; see also SHL Imaging, Inc. v. Artisan House, Inc., 117 F.
Supp. 2d 301, 318 (S.D. N.Y. 2000). Photographs currently are recognized as copyrightable works
under 17 U.S.C. § 102(a)(5), which provides protection for "pictorial, graphic, and sculptural works."
37. Id.
332 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL, 84

this determination, the Court took into account the various creative and
expressive actions the photographer took in making a photograph,
including the particular posing of the subject in front of the camera, the
selection and arrangement of costumes and other accessories, and the
lighting.38 Notably, the Court construed author broadly to mean "he to
whom anything owes its origin; originator, maker." 39
Perhaps an even clearer definition of the author of a photograph came
from Brett, M.R., in Nottage v. Jackson,4 0 which was quoted with
approval by the Court in Burrow-Giles.41 Brett's opinion described an
author as "the person who effectively is as near as he can be, the cause
of the picture which is produced, that is, the person who has
superintended the arrangement, who has actually formed the picture by
puttingz ersons in position and arranging the place where the people are
to be." According to the treatise Nimmer on Copyright, the main
thrust of this statement is that the author of a photograph simply may be
regarded as "the person closest to the actual creative process." Since
Burrow-Giles, other courts have identified a number of factors to
consider when determining whether a photographer is the "author" of a
photograph. These factors include the photographer's selection of the
pose of the subject, the choice of lighting and angle, the choice of which
of the subject's expressions to capture, the choice of the lens and the
camera, and "almost any other variant involved." 44
Another landmark Supreme Court case regarding originality is Feist
Publications, Inc. v. Rural Tel. Serv. Co. 45 In Feist, a telephone utility
company attempted to prevent a publisher of an area-wide telephone
directory from copying listings from the utility's white pages, alleging
46
that they were protected by copyright. To resolve the dispute, the
Court had to analyze whether the white pages satisfied the originality
requirement for copyright protection.4 7 As an initial matter, the Court
considered the white pages to be a "compilation" work, meaning that the

38. Id. at 55.

39. Id. at 57-58.
40. 11 Q. B. Div. 627, an 1883 British case.
41. Burrow-Giles, Ill U.S. at 61.
42. Id. (quoting Nottage v. Jackson, 11 Q. B. Div. 627). The Burrow-Giles court also found
instructive the Nottage opinions of Lord Justice Cotton, who said that "'author' involves originating,
making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a
drawing, or a painting, or a photograph," and Lord Justice Bowen, who said that "photography is to be
treated for the purposes of the act as an art, and the author is the man who really represents, creates, or
gives effect to the idea, fancy, or imagination."
43. 1-1 DAVID NIMMER, NIMMER ON COPYRIGHT § 1.06.
44. Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992).
45. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
46. Id. at 344.
47. Id. at 345.
2016] COPYRIGHTING MONKEY SELFIES 333

telephone utilit merely had collected a series of facts and assembled

them together.
Unfortunately for the utility company, the Court deemed that this act
alone was insufficient to constitute an original work. 4 9 Rather, much
like Burrow-Giles, the Court in Feist interpreted original to require only
that the author did not copy the work and that the work possess "at least
some minimal degree of creativity." 50 With respect to the telephone
utility's white pages, the Court found that this low threshold had not
been satisfied, because there was nothing even remotely creative about
an obvious, alphabetical arrangement of names.5 1 Since Feist, it has
become hornbook law that an author is "the person who originates the
work by contributing at least a minimal degree of expression to its
creation." 5 2
In addition to these holdings, Feist also rejected the previously
employed "sweat of the brow" doctrine, wherein an author was granted
a copyright in his work by virtue of the amount of effort he had put into
fixing his creation. 5 3 The Feist Court found that the doctrine had
numerous flaws, such as extending copyright protection in a compilation
work beyond the author's particular selection and arrangement of the
compiled facts to the facts themselves. 5 4 This, the Court held,
"eschew[ed] the most fundamental axiom of copyright law-that no one
may copyright facts or ideas." 5 5 Therefore, the Court declared
"originality, not 'sweat of the brow,' is the touchstone of copyright
protection." 5 6
The Court in Feist made clear that "the requisite level of creativity is
extremely low; even a slight amount will suffice. The vast majority of
works make the grade quite easily, as they possess some creative spark,
no matter how crude, humble or obvious it might be." 5 7 As a result,
courts have found the minimal degree of expression requirement to be a
very low threshold. In fact, even warning labels found on energy

48. Id. at 344-346.

49. Id. at 364.
50. Feist, 499 U.S. at 345.
51. Id. at 363-64.
52. PATRY, supra note 28, at § 5:3 (citing Brod v. General Pub. Group, Inc., 32 Fed. Appx. 231
(9th Cir. 2002) and Gillespie v. AST Sportswear, Inc., No. 97Civ.1911(PKL), 2001 WL 180147 (S.D.
N.Y. 2001)).
53. Feist, 499 U.S. at 352-53.
54. Id. at 353.
55. Id.
56. Id. at 359-60.
57. Id. at 345.
58. See, e.g., Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988) ("a showing of virtually
any independent creativity will do"); Weissmann v. Freeman, 868 F.2d 1313, 1321 (2d Cir. 1989) ("only
an unmistakable dash of originality need be demonstrated, high standards of uniqueness in creativity are
334 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

drink bottles qualify.59 Still, Feist recognized that a "narrow" category

of works might not meet the threshold, such as the telephone utility's
listings, where "the creative spark is utterly lacking or so trivial as to be
virtually nonexistent." 60

2. Originality v. Fixation

It should be emphasized that, as the Court noted in Feist, originality is

the touchstone of authorship-not fixation. The fact that the telephone
utility acquired the facts and fixed them in the tangible form of a
telephone listing was not enough to qualify the listing as an original
work of authorship. Moreover, as Nimmer on Copyright puts it, "the
originator, rather than the fixer, should be deemed the 'author."'62 This
notion seems relatively clear from the language of the Copyright Act,
which grants copyright protection to "o riinal works of authorship fixed
in any tangible medium of expression.' The use of the passive voice
in describing the fixation requirement implies that it is not relevant who
fixed the work in a tangible medium, only that the work is fixed in a
tangible medium. Therefore, the author and the "fixer" may or may not
be the same person.
Furthermore, the Copyright Act's definition of fixation only revires
that the work be fixed "by or under the authority of the author." In
interpreting the work-for-hire provision of the Copyright Act, courts
have recognized that authorship does not always require that the author
and the fixer be the same.65 For example, in Neri v. Monroe, the court

dispensed with"); Atari Games Corp. v. Oman, 888 F.2d 878, 882 (D.C. Cir. 1989) ("To constitute a
'work of authorship,' the material deposited with the Register must pass a 'creativity' threshold, i.e., it
must embody 'some modest amount of intellectual labor."').
59. See, e.g., Innovation Ventures, LLC v. N2G Distrib., Inc., 779 F. Supp. 2d 671, 678 (E.D.
Mich. 2011) and Stephen McJohn, Top Tens in 2011: Copyright and Trade Secret Cases, 10 Nw. J.
TECH. & INTELL. PROP. 331 (Feb.
2012),http://scholarlycommons.law.northwestem.edu/cgiviewcontent.cgi?article=1 l70&context--njtip
("Contains about as much caffeine as a cup of coffee. Limit caffeine products to avoid nervousness,
sleeplessness, and occasionally rapid heartbeat. You may experience a Niacin Flush (hot feeling, skin
redness) that lasts a few minutes. This is caused by Niacin (Vitamin B3) increasing blood flow near the
skin.").
60. Feist, 499 U.S. at 359.
61. Id. at 347.
62. NIMMER, supra note 43, at § 1.06.
63. 17 U.S.C. § 102(a).
64. Id. § 101.
65. See, e.g., Fisher v. Klein, 1990 WL 10072477 at *2 (S.D.N.Y. June 26, 1990) ("[U]nder the
copyright law ... authorship, even with sculptors, need not be in the form of the manipulation of the
material . . . [A] sculptor . . . might sit in a chair, never moving and never touching the materials,
perhaps in part because he might be paralyzed or simply because the materials might be large and heavy.
... I think it is clear without question that such participation is authorship. Such carrying out of ideas of
authorship is recognized as authorship under the copyright law even if the author never places his hand
2016] COPYRIGHTING MONKEY SELFIES 335

found that a glassblower who executes instructions to create a glass

sculpture cannot undermine the authorial status of a designer who
"decided what kind of glass would be created, in what shapes and
colors, attached to what armatures, and where the glass elements would
go relative to the ceiling and each other." 6 6 In arriving at this decision,
the court recognized that intellectual property most often is created in
stages, and that there could be features of the sculpture added by the
glassblower that he may have a copyright claim to. 67 Moreover, in
numerous instances it simply is impractical for an author to fix his work
in a tangible form. As one court explained, authors of poems, essays,
and novels can have copyrights, "even if they do not run the printing
presses or process the photographic plates necessary to fix the writings
into book form." 68 Simply put, an author of a copyrightable work does
not need to be the one who physically fixes the requisite original
expression.6 9

3. Idea-Expression Dichotomy

Under the Copyright Act, copyright protection never can extend

beyond the author's creative expression to include "any idea, procedure,
process, system, method of operation, concept, principle, or
discovery." o This often is referred to as the "idea-expression
dichotomy." 7 1 It ensures that, while authors may be entitled to protect
their creative, expressive works from being copied, the underlying ideas
on which the expression is founded cannot be taken out of the public
domain in violation of the First Amendment. 7 2
As explained by Register of Copyrights, Abraham Kaminstein, in a
1961 report:
Copyright does not preclude others from using the ideas
or information revealed by the author's work. It pertains
to the . . . artistic form in which the author expressed
intellectual concepts [and] enables him to prevent others
from reproducing his individual expression without his
consent. But anyone is free to create his own expression
of the same concepts, or to make practical use of them,

on the material.").
66. Neri v. Monroe, 726 F.3d 989, 992 (7th Cir. 2013).
67. Id.
68. Andrien v. S. Ocean County Chamber of Commerce, 927 F.2d 132, 135, (3d Cir. 1991).
69. See, e.g., PATRY, supranote 28, at § 5:3.
70. 17 U.S.C. § 102(b).
71. See, e.g., PATRY, supranote 28, at § 4:44.
72. See id.
336 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

as long as he does not copy the author's form of

expression.
The prohibition on copyrighting ideas furthers the primary objective
of copyright law, which is to promote the progress of science by
encouraging others to build upon the ideas conveyed by a work without
risking infringement. As the court in Feist recognized, this same
prohibition extends to facts, for the reason that facts lack authors.7 5
More specifically, Feist highlighted the distinction between creation of
original expression and discovery of facts, noting that "[t]he first person
to find and report a particular fact has not created the fact; he or she has
merely discovered its existence." 76 Discoveries, like ideas, statutorily
are prohibited from receiving copyright protection, for the same reason
of encouraging progress. 77

B. The U.S. Copyright Office Weighs In

In the wake of the monkey selfie controversy, the United States

Copyright Office released a public draft of the Third Edition of the
Compendium of U.S. Copyright Office Practices (Compendium II).78
The Compendium is a manual establishing various guidelines for
obtaining a copyright and explaining the Office's practices based on the
statutory requirements and relevant case law. In an apparent response to
the controversy, the Compendium III clarifies that the Office's
prohibition on copyright protection for "works of nature" bars protection
for "a photograph taken by a monkey." 79 Other exemplary unprotected
works of nature include "a mural painted by an elephant," and
"driftwood that has been shaped and smoothed by the ocean." 80
To support its "human authorship" requirement and prohibition on
works of nature being copyrighted, the Copyright Office cited Burrow-
Giles and other Supreme Court precedent observing that copyright
protection extends only to "the fruits of intellectual labor" that are
"founded in the creative powers of the mind" and "original intellectual

73. REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S.
COPYRIGHT LAw 3 (Comm. Print 1961).
74. Feist, 499 U.S. at 349-50.
75. Id. at 345 ("No author may copyright his ideas or the facts he narrates.").
76. Feist, 499 U.S. at 347.
77. See 17 U.S.C. § 102(b).
78. See COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES, Third Edition,
http://copyright.gov/comp3/ (last visited Feb. 14, 2015) [hereinafter COMPENDIUM II]. The
Compendium III is the first update since the second edition (Compendium 1I) was released in 1984.
Prior to the publication of this comment, the Compendium III went into effect on December 22, 2014.
79. Id. at § 306, § 313.2.
80. Id. at § 313.2.
2016] COPYRIGHTING MONKEY SELFIES 337

conceptions of the author." 8 As a result, the Copyright Office

maintains that it will refuse to register any works which it determines
were not created by a human being.82 The Copyright Office's logic in
reaching this conclusion is not entirely clear, as the cited cases do not
explicitly mention the word "human" or mandate any sort of human
authorship requirement. Regardless of its reasoning, the Copyright
Office ignores a work's potential to be created in part by nature while
still being an original conception of an author, the fruit of his intellectual
labor, and founded in the creative powers of his mind. The Copyright
Office's strict interpretation of the case law therefore would leave the
human participants of such works completely vulnerable to copiers.

C. Kelley v. Chicago Park District

In Kelley v. Chicago Park District, the Seventh Circuit held that an

artist's wildflower garden was not protectable by copyright because,
although original, the garden "lack[ed] the kind of authorship and stable
fixation normally required to support copyright." 8 3 Fixation issues
aside, the gardener-artist failed to satisfy the authorship requirement.84
The court found that Aardens categorically are "planted and cultivated,"
rather than authored. Moreover, the court announced that "authorship
is an entirely human endeavor," quoting a passage on authorship from
the well-known treatise, Patry on Copyrights.8 6 In making this
statement, the court also looked to the U.S. Copyright Office,
Compendium II: Copyright Office Practices § 503.03 (Compendium II)
for the proposition that "a work must be the product of human
authorship" and not the forces of nature. 87
In its analysis, the Kelley court posited that a garden "owes most of its
form and appearance to natural forces," because the majority of things
found in a garden originate in nature and not in the mind of the
gardener. Specifically, the court was referring to the "colors, shapes,
textures, and scents of the plants" in the garden; it did not consider the
selection and arrangement of the plants or the overall configuration of
the garden itself to be the garden's more prominent features.

81. Id. at § 306 (quoting Trade-Mark Cases, 100 U.S. 82, 94 (1879) and Burrow-Giles
Lithographic Co. v. Sarony, III U.S. 53, 58 (1884)).
82. Id. at§ 313.2.
83. Kelley v. Chicago Park Dist., 635 F.3d 290, 303-04 (7th Cir. 2011).
84. Id.
85. Id. at 304.
86. Id. (quoting PATRY § 3.19).
87. Id. (quoting U.S. Copyright Office, Compendium II: Copyright Office Practices § 503.03).
88. Kelley, 635 F.3d at 304.
89. Id.
338 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

The artist filed a petition for writ of certiorari to the Supreme Court,
but it was denied. 90 However, the artist made a number of compelling
arguments in his petition. For example, the petition noted the
incongruity of the Seventh Circuit's finding that the garden was an
original work by the artist, while nevertheless concluding that it lacked
the requisite "kind" of authorship simply because it incorporated living
elements.9 1 The petition further mentioned that there is no legal support
for a "correct" or "incorrect" kind of authorship test, noting that the
treatise cited by the court merely stands for "the unexceptional position
that materials produced solely by nature, by plants, or by animals are not
copyrightable . . . not that authorship requires every single element of a
,,92
work to have been created by the author (and not by nature). To
bolster its position, the artist also identified a number of floral, fruit, and
sand sculptures that have been afforded copyright protection as evidence
that works that incorporate natural elements are not barred categorically
from copyright. 9 3 Ultimately, however, the Supreme Court declined to
hear the case.94

III. DiscussioN
Slater has a number of strong arguments that he could advance to
prove that he owns a valid copyright in the monkey selfies. For
example, he can argue that he qualifies as the author of the works under
both the Burrow-Giles and Feist tests. Moreover, he can argue against
the Kelley court's finding that authorship must be "an entirely human
endeavor" and show that both he and the monkeys contributed to the
creation of the photographs. Finally, Slater can argue that his
photographs, and other "quasi-" works of nature, should be entitled to
copyright protection as a matter of policy and should not be
categorically denied protection in the way that true works of nature are.

A. Authorship Analysis

Harkening back to Burrow-Giles, the question of authorship turns on

whether the work owes its origin to anyone. It is, in a way, a "but for"
analysis. In Burrow-Giles, but for the photographer's particular
arrangements and selections, the resulting photograph would not have

90. Kelley v. Chicago Park Dist., 132 S. Ct. 380 (2011).

91. Petition for Writ of Certiorari at 12-13, Kelley v. Chicago Park Dist., 132 S. Ct. 380 (2011)
(No. 11-101), 2011 WL 3099722.
92. Id. at 18 (emphasis in original).
93. Id. at 20-21.
94. Kelley, 132 S. Ct. at 380.
2016] COPYRIGHTING MONKEY SELFIES 339

come into existence. 9 5 Accordingly, the photograph owed its origin to

the photographer. In the case of the monkey selfies, the photographs
owe their origins to the two players involved: the monkey and David
Slater. Obviously, certain aspects of the photographs were subject
simply to the monkey's positioning. However, the photographs clearly
owe their origin to Slater, as well. But for Slater's creative decision to
place his camera on a tripod for use by the monkeys, the photographs
would never have come into being.
In addition, Slater made a number of other creative contributions to
the photographs: the type of lens used, the type of film used, the type of
camera used, the camera's configuration settings, the film exposure, and
the framing of the shots with the backdrop of the Indonesian forest.
These contributions are much like the factors that have been identified
by courts as relevant in determining whether a person is the author of a
photograph, such as the choice of lighting and other similar variants.
Therefore, based on the definition of authorship espoused in Burrow-
Giles, Slater's photographs should be granted copyright protection.
Moreover, similar to the authorship at issue in Nottage, Slater was the
"cause" of the monkey selfie produced and certainly the person closest
to the actual creative process.
Slater's photographs also pass muster under Feist, which looks to
whether Slater truly originated the works by contributing at least a
minimal degree of expression to their creation. As previously stated,
this is a very low threshold that most works easily pass. Obviously,
Slater's creative input was essential to the creation of the photograph.
Monkeys do not purchase cameras, select and insert a particular type of
film into those cameras, bring the cameras back to their natural habitat,
and arrange a photo shoot. Rather, these were all steps that Slater took,
exclusively. In addition, at least some minimal degree of expression
permeates each of the steps Slater took toward the creation of the
photographs. Therefore, the photographs satisfy the low threshold set
by Feist.
This is not to say that the defunct "sweat of the brow" doctrine
secretly is at work here. This is not a case of a would-be author going to
great lengths to compile various facts, ideas or works that already exist
into a predictable arrangement that lacks any degree of expression or
creativity. Rather, Slater clearly contributed at least a minimal-and,
arguably, a very large-degree of expression to the monkey's
photographs, as evidenced in part by the rare nature of his actions and
the lack of similar works. Granting copyright protection to Slater's
photographs would not prohibit others from copying his technique, or

95. See generally Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).
340 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

the "idea" of orchestrating the act of a monkey taking a picture of itself.

Rather, only those who copy the actual photographs that he engineered
would be liable for infringement.

B. Authorship Not Required to be an "Entirely"Human Endeavor

The Kelley court and, indeed, Patry on Copyrights, misrepresent the

human authorship requirement as stated in the Compendium II. To be
clear, the Kelley court took the statement "authorship is an entirely
human endeavor" directly from Patry.96 However, the authorities cited
by Patry fail to fully support this 3roposition. For example, Patry cites
the Compendium II § 202.02(b). However, this section's full text
reads: "[t]he term 'authorship' implies that, for a work to be
copyrightable, it must owe its origin to a human being. Materials
produced solely by nature, by plants, or by animals are not
copyrightable." The Compendium II does not prohibit copyright
protection for a work produced "jointly" by nature and a human author,
thereby owing its origin to both. In fact, it is silent on this issue. The
drafters of the Compendium II easily could have left out the word
"solely," or adopted language as broad as that used by Patry, but they
did not. Therefore, the Compendium II creates no "entirely human
endeavor" requirement, but, rather, it leaves room for copyright
protection for works owing their origin to both nature and a human
author.
Furthermore, § 503.03(a) of the Compendium II, also cited by Patry,
more precisely states "a work owing its form to the forces of nature and
lacking human authorship is not registrable." 9 9 Under the canons of
statutory construction, every word of this section must be given effect.
It should be recognized that the Compendium II does not read "a work
owing its form to the forces of nature and 'thereby' lacking human
authorship." Rather, it leaves wide open the possibility that a work may
owe its form to the forces of nature while also having human authorship.
Clearly, if a work owing its form to the forces of nature automatically
implies that the work also lacks human authorship, the above italicized
portion is redundant. There must be some circumstances in which a
work may owe its form to nature and also involve some form of human
authorship. The monkey selfies are precisely such a situation.

96. Kelley, 635 F.3d at 304 (quoting PATRY § 3.19).

97. PATRY, supra note 28, at § 3.19 n. 1.
98. COMPENDIUM OF COPYRIGHT OFFICE PRACTICES, Second Edition,
http://www.copyrightcompendium.com/ (last visited Feb. 14, 2015) (emphasis added) [hereinafter
COMPENDIUM IT].
99. Id. (emphasis added).
2016] COPYRIGHTING MONKEY SELFIES 341

An analogy may be drawn between works owing their form to both

nature and human authorship and works created by mechanical
processes or random selection. The Compendium II prohibits copyright
protection for such works produced "without any contribution by a
human author," impliedly permitting protection for works created by
mechanical processes with human contribution. 0 0 Indeed, a vast
number of protected works, such as books, are created by mechanical
processes, but are copyrightable because their creation requires some
degree of human contribution. The remaining sources cited by Patry all
involve claims to copyright in works produced by "otherworldly
figures,"' 0 ' and even there, Patry concedes that human beings who
"materially contribute" to the structure, arrangement, and organization
may provide the necessary creativity to qualify as authors with respect
to those aspects.1 0 2 The common thread among these prohibitions is
that a human author must contribute to a work for the work to be
protected by copyright; the work need not be an entirely human
endeavor.
In addition to the fallacies in Patry'sreasoning, the gardens in Kelley
are distinguishable from Slater's photographs. A primary concern of the
Kelley court was that gardens "are planted and cultivated," such that
they owe their form and appearance to "natural forces." Breaking
down the "natural forces" to which the Kelley garden owed its form and
appearance, the court was referring to those forces that impact the
"form, growth and appearance" of the individual seeds or seedlings,
such as sunlight, water, weather, soil, and the natural qualities of the
seeds or seedlings themselves.104 However, the monkey selfie does not
owe its form and appearance to such natural forces. Rather, the
photograph owes its origin to the contributions of both the monkey and
Slater. While the monkey ultimately may have been responsible for
facing the camera lens and pressing the button, Slater facilitated the
photo shoot by selecting the camera and the type of film, loading the
film into the camera, and processing the photographs. Most of "what we
see and experience" when looking at the monkey selfies originated with

100. Id.
101. PATRY, supra note 28, at § 3:19 (citing Michael Foundation, Inc. v. Urantia Foundation, 61
Fed. Appx. 538 (10th Cir. 2003); Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir. 1997);
Penguin Books U.S.A., Inc. v. New Christian Church of Full Endeavor, Ltd., No. 96 CIV.4126(RWS),
2000 WL 1028634 (S.D. N.Y. July 25, 2000), vacated by 2004 WL 906301 (S.D. N.Y. 2004); Garman
v. Sterling Pub. Co., Inc., No. C-91-0882 SBA (ENE), 1992 WL 12561293 (N.D. Cal. Nov. 5, 1992);
Urantia Foundation v. Burton, No. K 75-255 CA 4, 1980 WL 1176 (W.D. Mich. Aug. 27, 1980)).
102. PATRY, supra note 28, at § 3:19 (citing Urantia Foundation v. Maaherra, 114 F.3d 955, 958
(9th Cir. 1997)).
103. See Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011).
104. Id.
342 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

Slater, not with some random force of nature.

C. Animal-GeneratedArt

Monkey selfies may be categorized broadly as a product of "animal-

generated" art. This type of art is quite popular, particularly with
respect to paintings made by various animals, oftentimes in zoos.los
Some of these works have been known to command thousands of dollars
when sold.1 0 6 Usually, trained animals that follow a painting routine,
taught to them by their human instructors, create these works. 107 10In8
Slater's case, he has characterized the monkey as his "assistant."
There is no reason why such animal-generated art should be treated any
differently than analogous machine-generated art, where a machine
under human instruction manufactures a work. Such works
unquestionably are covered by copyright protection so long as the
requisite degree of expression is met. The monkey, like a printing press
or even the camera it used, is simply a part of the process Slater used to
create the photographs. After all, originality-not fixation-is the
touchstone of authorship. The medium and tools used by an author in
creating a work are completely irrelevant to the copyrightability
analysis.109 Therefore, it should not matter whether Slater employed the
use of a monkey in the creation of the photographs any more than it
matters that he used a camera to take the photographs.
Furthermore, photography triggered by animals has been copyrighted
in the past. For example, Steve Winter, a National Geographic
photographer and 2008 Wildlife Photographer of the Year, used motion
sensor triggered cameras that automatically released the shutter to
capture his now-famous nighttime photo of a snow leopard in the
Himalayas. 110 Slater even has pointed this out to news outlets, asking if
Wikipedia also will "steal that image off National Geographic or Steve
Winter, [and] put it [into the] public domain?"'11 At least in Slater's
case, the monkey snapped the photographs "under [his] authority," as
required by statute.

105. See, e.g., Aaron Sankin, Monkeys can't own selfiesbut what about paintings?, THE DAILY
DOT (Aug. 6, 2014, 4:05 PM), http://www.dailydot.com/politics/animal-artists-copyright/.
106. See id.
107. See id.
108. See Simmons, supra note 13.
109. See H.R. REP. 101-514, H.R. REP. No. 514 (101st Cong., 2nd Sess.), reprinted in 1990
U.S.C.C.A.N. 6915, 6921 (stating, "[a]rtists may work in a variety of media, and use any number of
materials in creating their works. Therefore, whether a particular work falls within the definition should
not depend on the medium or materials used.").
I10. Stewart, supra note 1; see also U.S. Copyright Registration No. VAOOO 1823545.
111. Id.
2016] COPYRIGHTING MONKEY SELFIES 343

D. Policy Reasons Support GrantingCopyrights to the Monkey Selfies

Copyright law best would be served if a distinction were made

between true works of nature and what may be considered partial or
quasi-works of nature. True works of nature are those that exist without
human involvement of any kind; they are works that nature has
singlehandedly and independently produced. Quasi-works of nature, on
the other hand, are those that are the result of the combined efforts of
both a human author and a natural force. These works may be, for
example, a manipulation of a natural thing by a human. Moreover, these
quasi-works of nature should be copyrightable so long as the human
author has satisfied the minimal degree of creativity requirement.
Drawing this distinction between uncopyrightable true works of nature
and copyrightable quasi-works of nature would serve the public interest
and would comport with the policies and goals of copyright law in the
United States.
As explicitly set forth in the United States Constitution, copyright law
serves to promote the progress of science.112 It seeks to accomplish this
goal by offering an incentive to authors in the form of an exclusive right
to their works, such that an author may exclude others from copying his
original work. Absent such protection from copiers, the drafters of the
Constitution feared that would-be authors might decline to create works,
and scientific progress would be stifled. After all, there is less
motivation to create a work if the ability to achieve recognition or
financial benefit is undermined by others who freely duplicate and leech
off of the work's success. For this reason, copyright protection is
considered vital to encouraging authors to create original works.
In light of this, the reasoning behind the prohibition of copyright
protection for works of nature is simple: there is no way to encourage
the creation of a work that already exists in nature. Nature will produce
its own works regardless of the state of copyright law. Therefore, the
driftwood shaped by the ocean and the cut marks or defects found in a
stone will come into being regardless of any copyright protections. This
simply is not so in the case of the monkey selfie. Monkeys do not
naturally photograph themselves, and monkey selfies are not "works of
nature" in the traditional sense that nature will produce them on its own.
Rather, they are works incorporating both characteristics of nature and
human creativity-quasi-works of nature-and their existence depends
at least partially on whether copyright law will protect them.
The reasoning behind the Copyright Office's prohibition on copyright
protection for works of nature is analogous to its prohibition on

112. U.S. CONST. art. 1, § 8, cl. 8.

344 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

copyright protection for facts: nature's creations, like facts, may be

discovered, but they cannot be "authored." However, use of facts in an
expressive form can warrant copyright protection, and, similarly, use of
a creation of nature in an expressive form also should warrant
protection. For example, in Slater's case, his utilization of a monkey to
create an original work with the requisite degree of expression on his
part should warrant protection.
Granting copyright protection to quasi-works of nature would further
the goal of copyright law to promote progress by ensuring that these
kinds of works are created. While driftwood shaped by the ocean may
be created whether it is cast into the sea by an avalanche or by an artist
seeking new ways to express himself, one thing is certain: monkeys do
not own cameras and are not taking selfies on their own. Without some
level of human involvement, these works would not exist. And without
copyright protection, Slater's monkey selfies, elephant paintings, and
other similar works are left vulnerable to copying without compensating
the human artists who facilitated their creation. If the language of the
Compendium III draft is adopted as it stands, it is unlikely that a
photographer would follow Slater's lead and allow his camera to be
used by a wild animal. The risks involved surely are not worth the end
result of producing a variety of incredible photographs that the
photographer can assert no ownership rights over. It is likely that
similar works may never again be produced.
It might be said that Slater's monkey selfies are unimportant, lack any
significant value, and do not really serve to further the constitutional
goal of copyright law, such that prohibiting monkey selfies them from
receiving copyright protection and risking that similar works might not
be created is of little or no consequence. After all, monkey selfies are
not usually the kind of works that come to mind when considering the
promotion of "science and [the] useful arts." 1 13 However, in addition to
monkey selfies being a source of amusement for the Internet masses,
these photographs may reveal interesting behavioral habits of the
particular monkey or perhaps its entire species.
It further may be said that such works are less deserving of copyright
protection than works that relate to the advancement of science, but such
statements would be legally unfounded. It is axiomatic that copyright
law does not consider the artistic merit of a work when determining its
copyrightability.11 4 Neither the Copyright Office nor the courts are

113. Id.
114. See, e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) ("It would be
a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the
worth of pictorial illustrations ... [Ijf they command the interest of any public, they have a commercial
value-it would be bold to say that they have not an aesthetic and educational value-and the taste of
2016] COPYRIGHTING MONKEY SELFIES 345

permitted to insert into the analysis their own subjective opinions on

what art is valuable and what art, in their view, is not important enough
to warrant copyright protection. 5 Rather, as set out in Feist, the work
must possess only some minimal degree of creative expression. What
that expression is "worth" is irrelevant. Moreover, the ability of the
monkey selfies and other animal-generated art to sell for large sums of
money implies that these kinds of works are valuable. 1' 6
Looking to other kinds of works protected by copyright, it is even
more obvious that Slater's monkey selfies should be copyrightable. For
example, a category of works referred to as "works based on nature" has
widely been recognized as being subject to copyright protection.1 17 In
general, these works refer to photographs, paintings, sculptures, or
videos of natural subjects such as animals, trees, or anything else that is
naturally occurring. Because protecting these works under copyright
law led to some confusion over which aspects of the work the artists had
exclusive rights to, the Supreme Court clarified that the author only has
exclusive rights to his work. The result is that "anyone may go back to
the same source in nature and create a second work with the same
theme. One is forbidden only from outright copying of the previous
artist's version.,,118
Slater's monkey selfies are analogous to works based on animals. In
particular, wildlife photographers are deemed to contribute the requisite
degree of expression despite the fact that they do not contribute to an
animal subject's pose.1 Moreover, producers of wildlife
documentaries unquestionably own copyrights over their film footage,
despite having little, if any control, over the movements of their
subjects.120 How can a photographer, who coaxes an animal subject into
taking a photograph of itself, be said to have given less creative input
into his work than a cameraman who merely captures the natural
movements of an animal subject on film?
This leads to another interesting hypothetical: if Slater had set his
camera to record video and began recording prior to giving the monkey

any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our
hopes for a change. That these pictures had their worth and their success is sufficiently shown by the
desire to reproduce them without regard to the plaintiffs rights.").
115. PATRY, supra note 28, at § 3:36.
116. See Bleistein, 188 U.S. at 251.
117. In Bleistein, the Court rejected the argument that paintings or engravings were not
protectable because they are based on natural subjects. Id. at 249.
118. PATRY, supranote 28, at § 3:38:50.
119. See, e.g., U.S. Copyright Registration No. VA0001823545.
120. See, e.g., U.S. Copyright Document No. V3481DO96 (titled "American bison: the return of
the buffalo; education documentary television program / Produced by National Wildlife Productions,
Inc.").
346 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

the camera, he almost certainly would own a valid copyright in the

entire video, including the resulting still shots of the monkey facing the
camera. If the difference between Slater having a copyright and having
no copyright rests on the camera setting and who pulled the trigger, then
fixation is being wrongly applied as the controlling factor. As
previously stated, who fixed the expression does not matter; it only
matters that the expression is fixed in a tangible form, under the author's
authority.121
Considering jointly authored works, where two authors contribute
requisite degrees of expression to a single work,122 makes it more
obvious that copyright protection should be granted to Slater's
photographs. After all, how can it be that when two competing interests
exist between joint human authors, each receives a copyright over the
entire work as a whole, but when the work owes its existence to the
combined efforts of nature and an independent human author, no
copyright is granted over the work? The only valid interest in the latter
case belongs to a human author, and no other party has grounds for a
competing interest against his.
When no other competing interest exists, the "default" competing
interest is usually that of the general public, which would lose
unrestricted access to a work by granting a copyright to its human
author. In this case however, the general public has not lost anything
from the public domain because nothing is being taken away from them.
Granting a copyright to Slater leads to the same result as granting any
other author a copyright in their work: the ability to exclude the rest of
the world from copying that work. The public is not harmed by a
copyright that excludes them from copying a work that did not exist
prior to the author's creation.
Removing monkey selfies from the public domain and giving
exclusive rights to the photographer who facilitated their very existence
is not analogous to the injustice that would result from granting a
copyright in a particular rock, tree, or plant, which the public would
have been previously free to replicate. The public would be forbidden
from outright copying of Slater's monkey selfies, but no one would be
enjoined from returning to the same Indonesian forest, finding the same
monkey, and inducing it to take similar photographs. Hence, the public
does not lose anything that it previously had access to.
Granting copyright protection to these quasi-works of nature also
would serve to encourage honesty among artists. Slater himself has
pointed out that if he had lied and simply claimed he took the

121. See, e.g., PATRY, supra note 28, at § 5:3.

122. See 17 U.S.C. § 101 (2010).
2016] COPYRIGHTING MONKEY SELFIES 347

photographs himself, he "would potentially be a lot richer," because no

one would question the validity of his copyright.123 Additionally, it is
unlikely that anyone could prove that he did not take the photographs
himself. While such dishonesty may have detracted from some of the
value of the photographs-after all, part of the appeal is that they are
"selfies"-Slater likely would have reaped significant financial gains if
he held a copyright on the photos, because the photos are clear, close-up
shots of a rare and critically endangered species of monkey that is
difficult to photograph. Allowing copyright registration for quasi-works
of nature would encourage those who have collaborated with some force
of nature in the creation of a work to openly acknowledge nature's
involvement, rather than dishonestly claim sole authorship.
Finally, many registered works already owe their existence to both a
human author and a force of nature. For example, nearly any sculpture
carved from wood or formed from clay might be considered a quasi-
work of nature and, yet, such works are already unquestionably
copyrightable. 12 Even a floral arrangement may be registered for
copyright protection.125 More analogous to Slater's monkey selfies is
the previously mentioned snow leopard photograph.126 In light of all of
these arguments, it would be helpful for both would-be authors and
would-be copyright infringers if either the courts or the Copyright
Office were to clearly distinguish between uncopyrightable true works
of nature and copyrightable quasi-works of nature. In denying certiorari
to the artist in Kelley, the Supreme Court missed an opportunity to draw
a distinction between true works of nature that are not subject to
copyright protection, and works that are a product of the combined
efforts of nature and human creativity.

123. Abby Phillip, If a monkey takes a selfie in the forest, who owns the copyright? No one, says
Wikimedia, WASH. POST (Aug. 6, 2014), http://www.washingtonpost.comnews/the-
intersect/wp/2014/08/06/if-a-monkey-takes-a-selfie-in-the-forest-who-owns-the-copyright-no-one-says-
wikimedia/.
124. See, e.g., U.S. Copyright Registration No. VAu000309326 (titled "Horse") (carved wood
sculpture); Registration No. VAu000434894 (entitled "Cougar lady") (wood carved violin); Registration
No. VA000309328 (entitled "Possum") (carved wood sculpture); Registration No. VAu000352281
(titled "Bear family") (clay sculpture).
125. See, e.g., U.S. Copyright Registration No. VAu000398457 (titled "Seashell wreath with
flower decoration"); Registration No. VAu000028223 (titled "Country classic bouquet") (dried floral
arrangement); Registration No. VAu000028224 (titled "Golden harvest bouquet") (dried floral
arrangement).
126. Winters' photograph of the snow leopard is registered as U.S. Copyright Registration No.
VA0001823545.
348 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 84

IV. CONCLUSION

In the ever-expanding field of copyright law, there is plenty of room

for Slater's monkey selfies to be granted protection. Under the
authorship requirements set forth by the Supreme Court in Burrow-Giles
and Feist, Slater contributed the requisite degree of creative expression
to qualify as an author. The Seventh Circuit in Kelley wrongly found
that authorship is an entirely human endeavor as the statute and
Compendium II leave open the possibility of copyright protection for
works created jointly by nature and a human author. Moreover, so long
as the human author contributes the necessary original expression, it is
irrelevant who fixes the expression in a tangible form. Finally, the state
of the copyright law best would be served if a clear distinction were
drawn between those true works of nature that the law seeks to prohibit
from copyright protection and quasi-works of nature that would benefit
greatly from protection and encourage the creation of more original
works such as Slater's photographs. Therefore, David Slater ultimately
should prevail in his dispute with Wikimedia and other unlicensed users
of his monkey selfies.