The Case of the Black Macaque

This Kat had quite set his mind against posting anything to do with the Case of the Black Macaque, which has motivated literally hundreds of readers -- who already know all about it -- to email him and numerous other Kats, severally and individually, to ask them if they saw the news and/or to inquire as to why no post had yet been published on it. Meanwhile, gallant Katfriend and distinguished academic Estelle Derclaye kindly stepped forward and offered to pen the following guest post:

"As many readers have already heard, a dispute has arisen between Wikipedia and David Slater, a British photographer, about some monkey business. The latter occurred when the photographer's camera was stolen by a monkey (a crested black macaque) while he was on a trip to Indonesia in 2011 and the monkey took a few shots of herself (she being a female, with a beautiful smile at that). Wikipedia argued that, since was is the monkey and not a human being who took the pictures, there was no copyright; it thus  posted the pictures on the entry for the endangered macaque without asking the photographer. But, from the photographer's perspective, copyright did subsist -- for it was he who set up the camera: the monkey only pressed the button (actually, as of 8 August at 1700 pm at least, the contested photograph was still on Wikipedia's site, accompanied by an explanation about the dispute). It has been rumoured that, before releasing the photograph, the photographer made some amendments to the shot [could this be taking the photo into to wonderful world of the Red Bus case, Merpel wonders].

Are paintings by cats any different, in legal
terms, from selfies taken by monkeys?

So is there copyright in the photograph? It seems like this will be an evidential issue. If the photographer did indeed adjust the camera settings and the monkey stole the camera, then the monkey just pressed a button and is not the author, but the photographer is. But what if the settings got lost while the monkey was playing with the camera? Is there a witness (e.g. was the travel guide accompanying David Slater there at the moment the photos were taken)? If only monkeys were there, we have no (human, thus valid) witnesses ...  Then can the photographer have the benefit of the doubt? Can the amendments qualify the photograph as a derivative work made by the photographer? It will depend on the type of amendments and whether they fulfil the ''author's own intellectual creation'' criterion as developed by the Court of Justice of the European Union in Case C-1245/10 Painer [noted by the IPKat here]. This guest blogger has no additional information as to the nature of these amendments (if readers do know, please share this information with the IPKat). Or, and here's yet another possibility, should there be a compromise in the guise of a compulsory non-exclusive licence against (modest) payment in view of the evidential problem?

In this guest blogger's view, the photographer may have a case -- and he actually wants a court to decide the issue. So let's see if the case lands in the -- presumably -- IPEC".

Links to the story in the news here and here

Macaques on them blogosphere here, here and here

This Kat thanks Estelle for her efforts, and pauses to note that the Elephant Art Gallery offers paintings by elephants, but its copyright notice asserts that it and not the elephants own the rights. He's not sure what assertions are made in respect of artwork generated by cats, but assumes that the post-mortem period of copyright protection kicks in only after the expiration of the author's ninth life.