Digitized Book Images and Macaque Copyright Ownership
Historic Copyright Friendly Book Images
Kalev Leetaru recently uploaded to Flickr 2.6 million fully-tagged images and drawings from various books. This endeavor is part of the Internet Archive Organization’s scanning process. Since each image is tagged, users can efficiently search for and locate images using simple keyword searches. Leetaru hopes this digital archive will serve as a historical archive that will serve those needing images. Hopefully, others will follow in uploading images that can be freely utilized by others. One option I might encourage others to include when uploading such images is to include a Creative Commons license on these items so that any doubt of subsequent use is assuaged.
Most everyone read or heard about the Celebes crested macaque in Sulawesi, Indonesia taking selfies with David Slater’s camera. Now, a legal dispute exists to determine who owns the photos created by the macaques, and not by Slater. Slater of course claims that his “toil and trouble” lead to the creation of these photos, and thus he advocates it does not matter that he did not actually create the photos (he did not press the button on the camera that lead to the creation of the photo, the macaques pressed the button). In essence, Slater claims his extensive travel to the volcanic tropical forest in Sulawesi, Indonesia, and his travel through this area’s humid and dense jungle equated to his “toil and trouble.”
However, in the United States anyway, a couple of problems exist in claiming copyright ownership over images created by a macaque. One such problem is that in most countries it is well established that only humans may own copyright. Further, only a creator may have copyright protection. Thus, if a macaque creates a photo, logically, no copyright exists. If animals were to own copyright one can imagine the unintended consequences. For example, if a fish rearranges the rocks at the bottom of an aquarium, and this arrangement is fixed for certain period of time, does the fish now own the copyright for this arrangement (mimicking copyright in a sculpture)? And on and on and on, this could become ludicrous.
Another barrier to Slater owning copyright to these macaque produced images is that it is long established, per the Feist case, that sweat of the brow, or Slater’s “toil and trouble” does not by itself earn copyright protection. More than just sweat of the brow is mandatory, such as some modicum of originality, and more specifically some modicum of originality created from a human not a macaque.
Thus, most copyright attorneys that practice in the academic industry see this story as a perfect example as to why the public domain exists, and why sometimes many creations have no owners. When an item technically does not belong to anyone, this is not a bad thing. It is actually very positive. Think of all of the creative endeavors that could result from these macaque selfies, or from other alleged animal creations (fish rearranging rocks). However, many IP attorneys outside of the academy are supporting Slater’s claim that he is entitled to the copyright of these macaque produced images.
One other aspect to keep in mind is that the images were created in Indonesia, thus Indonesian law applies. It will be interesting to see whether this case progresses in the courts, and the possible judicial outcomes.